Intellectual Property License Agreements is entered between an owner of the intellectual property and a third party to whom the right to access and enjoy certain rights are provided with respect to that Intellectual Property. The same can be done in exchange for a consideration. These licenses can either be exclusive or non-exclusive.
In Switzerland there are individual statutes governing different areas of intellectual property such as patents, trademarks, copyrights, designs and plant varieties. These individual statutes are precedent to the general provisions of the Swiss Civil Code. Further, under Swiss Law a license agreement is a contract which is ruled by the general rules of the Code of Obligations.
1. Copyrights
The Federal Act on
Copyright and Related Rights is the main act governing copyrights in
Switzerland.
- The
author has the right to offer, transfer or distribute copies of the work.[1]
- Copyright
is assignable or may be inherited. However, this does not include the
assignment of other partial rights or the right to exploit either the copy or
the original work.[2]
- A
performer has the exclusive right to offer, transfer or otherwise distribute
copies of their performance.[3]
A copyright
assignment can be done without registration and hence are effective even
without any written contracts as it is assignable generally, however written
form should be done in order to have a proof of the transaction made. Copyright
must be granted automatically and not based upon any formality such as registrations.[4]
2. Designs
The Federal Act on
the Protection of Designs is the main legislation governing designs in
Switzerland.
- The
right holder of a design may transfer the same in whole or in part.[5]
- However,
the transfer is only valid if it is done in writing. Registering the transfer
is not mandatory. [6]
- In
case of licensing a right holder of design may permit third parties to use the
the design right or other individual rights conferred by the design right
either exclusively or non-exclusively.[7]
- The license and the rights become binding when it entered in the register at request of either of the parties involved.[8]
- Switzerland
is a party to the The Hague Agreement.
- Under
The Hague Agreement Concerning the International Registration of Industrial
Designs, request for the recording of a change in ownership may be done.
- The
Common Regulations under the 1999 Act and the 1960 Act of The Hague Agreement
records changes and corrections in ownership. A change in ownership shall be
done by requesting the recording.[9]
3. Patents
The Federal Act on
Patents for Inventions governs patents in Switzerland.
- The
right to the grant of the patent passes to the heirs.[10]
- The
rights to the grant of the patents can be assigned to third parties either
wholly or partly.[11]
- In
case of joint ownership, the right can be transferred only with consent of the
co-owner.[12]
- The
transfer of the patent is valid only if the same is done in writing.[13]
- A
transfer of right in case of patents need not be registered compulsorily in the
Patent Register.[14]
- The
patent applicant or the proprietor of the patent may grant third parties the
right to use the invention by granting licenses.[15]
- A license cannot be transferred without the consent of all the right holders of the patent in case it is owned by two or more people.[16]
4. Trademarks
The Federal Act on
the Protection of Trade Marks and Indications of Source is the main legislation
governing Trademarks in Switzerland.
- The
Proprietor of a trademark may permit others to use the trade mark for the goods
or services for which it is claimed in whole or in part[17].
- Such
a license shall be entered in the Register at the request of one the parties in
order to be binding on any rights to the trade mark subsequently acquired.[18]
- In case of granting of license with respect to collective marks are only valid if entered in the Register.[19]
- Switzerland
is a party to the Madrid Agreement and the Madrid Protocol relating to the
International Registration of Marks which reads that in order to change
ownership of the intellectual property, the new owner should have a business or
domicile in a member of the the Madrid System or be a national of a contracting
party.
- To
make changes in the ownership of international registration, request for
recording shall be presented.[20]
- The International Bureau shall promptly record the indications, the change or the cancellation in the International Register and notify the offices of the Contracting Parties.[21]
[1] Article 10(b). Federal Act on Copyright and Related Rights.
[2] Article 16. Federal Act on Copyright and Related Rights.
[3] Article 33(d). Federal Act on Copyright and Related Rights.
[4] Article 9. Berne Convention for the Protection of Literary and Artistic Works.
[5] Article 14. Federal Act on the Protection of Designs
[6] id.
[7] Article 15. Federal Act on the Protection of Designs.
[8] id.
[9] Rule 21. The Common Regulations under the 1999 Act and the 1960 Act of The Hague Agreement.
[10] Article 33 C. Federal Act on Patent for Inventions.
[11] id.
[12] id.
[13] id.
[14] id.
[15] Article 33 D. Federal Act on Patent for Inventions
[16] id.
[17] Article 18. Federal Act on the Protection of Trademarks and Indications of Source.
[18] id.
[19] Article 27. Federal Act on the Protection of Trademarks and Indications of Source.
[20] Rule 25. Regulations under the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks.
[21] Rule 27(1)(a). Regulations under the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks.
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