The design law seeks to protect shapes of products or parts of producs. Products are characterized by the arrangement of lines, areas, contours, colors or the material used (DesG 1).
The design thus protects the external appearance of a product, thus its visible shape. Under the term shape it is to be understood a view of a cup, a coffee machine, a stylus, a table etc.
Texts, pictures, maps, forms, tables, comics are no designs. For these objects, the shape of the product and the shaped product are the same.
A shape can be two-dimensional or three-dimensional, whereby two-dimensional shapes are also referred to as patterns, three-dimensional shapes are also referred to as models. The shape of the design can be characterized by the arrangement of areas and lines, contours or colours as well as by the material used. It is further of importance that the design is a man-made object, i.e. a product, that means any industrially manufactured object including its parts. An object is thus any product or any packaging. No products in the sense of the design law are thus abstract ideas, motives, concepts, services or processes.
The shaping of an object to form a design allows for abstraction. That means that parts of the design can be left away when filing for a design with the competent authority. A design can be thereby reduced to its essential features. It is possible to enlarge scope of protection by this approach. However it has to be considered at the same time that the conditions for obtaining design protection are still fulfilled.
A trademark is a designation of an origin. A trademark characterizes a product or service as originating from one company.
A work which is protected by copyright needs not to be new, only newly created. The copyright automatically comes into being with the creation of the work. No registration is required for copyright protection.
Objects of the applied arts can be protected as designs as well as works under the copyright law.
A design is eligible for protection if it is new and has individual character (Swiss Design Law § 2.1). A design has to be registered with the IGE to become a valid IPR in Switzerland. That means a design right can only come into being upon registry in the design register of the IGE. (Swiss Design Law § 5.1).
A Swiss design is not new if an identical design has been made available to the public before the date of filing or the date of priority, respectively, which could be known to the interested circles in Switzerland (Swiss Design Law § 2.2)
Judgement of the novelty of a design:
The novelty is examined by an objective comparison between the registered design and the known shaped objects. For a design to be novel its shape has to be different from the known object(s). Only an identical object takes away novelty of the design.
The novelty is examined only in connection with the subsequent prior art which could be known to the interested circles in Switzerland at the relavant point in time. That means that a prior publication anywhere in the world can take away novelty, however only under the condition that it is plausible that it could be reasonably be known in the interested circles in Switzerland. Under the term "interested circles" it is intended the potential buyers of the design.
A design has no individual character if it differs in its overall perception only in non-essential features from a design which could be known to the interested circles in Switzerland (Swiss Design Law § 2.2).
A design is to be filed by the national or international authority registering designs on a national level or internationally such as in the EU. In Switzerland, a design has to be registered with the IGE.
During the registration procedure, novelty an individual character of a design are not checked by the autorities. The registration of a design entails a presumption of novely and individual character.
Further information relating to registration of designs in Switzerland is to be found at the IGE.