<OrderedList> <ListItem> <ItemNumber>1.</ItemNumber> <ItemContent> The existence of a reputation is a necessary and additional criterion for an unnecessary plagiarism prohibited under Art. 3(1)(e) Unfair Competition Act. </ItemContent> </ListItem> <ListItem> <ItemNumber>2.</ItemNumber> <ItemContent> The creation of a mental association with the reference product no doubt does not go as far as when confusion with the latter is alleged. </ItemContent> </ListItem> <ListItem> <ItemNumber>3.</ItemNumber> <ItemContent> Purely descriptive elements are not capable of creating an image for the comparable product that the infringer could transfer to his product. It is not objectively capable of arousing an association with the comparable product in the mind of the addressee. If the similar features therefore only correspond in a directly descriptive element, there can be no question of unauthorised plagiarism (here: the purchasers of google-eyed plush toys directly understand the obvious abbreviation “GLUBSCHI” as a descriptive indication of the external features of the product). </ItemContent> </ListItem> <ListItem> <ItemNumber>4.</ItemNumber> <ItemContent> “Secondary trade marks” of the agent do not fall under the scope of application of Art. 4 Trade Mark Protection Act (TmPA). If the agent adds to his supplier’s trade marks a separate trade mark under which he distributes the imported goods and makes them known in the relevant market, the principal can neither demand the cancellation nor the transfer of the secondary trade mark after termination of the contractual relationship. However, he may be able to take action against the registration or use of such trade marks on the basis of any contractual agreements, but not on the basis of Art. 4 TmPA. </ItemContent> </ListItem> <ListItem> <ItemNumber>5.</ItemNumber> <ItemContent> Article 4 TmPA does not provide a remedy against trade mark piracy. If a third party deposits the trade mark of a party with better entitlement with whom he has no contractual relationship authorising him to use the trade mark, Art. 4 TmPA must be ruled out for lack of an authorisation to use the trade mark. </ItemContent> </ListItem> <ListItem> <ItemNumber>6.</ItemNumber> <ItemContent> In contrast to the use that preserves the right, vicarious use by the agent cannot suffice as a third-party use that creates the right, thus creating a prior better entitlement on the part of the principal to the trade mark. In this context, the agent is not a “third party”. The vicarious use by the agent does not lead to the creation of a separate right of the principal to the trade mark deposited by the agent that would otherwise not exist. </ItemContent> </ListItem> </OrderedList>

“GLUBSCHIS”

期刊论文
发表日期：

2025年8月19日

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摘要

The existence of a reputation is a necessary and additional criterion for an unnecessary plagiarism prohibited under Art. 3(1)(e) Unfair Competition Act.

The creation of a mental association with the reference product no doubt does not go as far as when confusion with the latter is alleged.

Purely descriptive elements are not capable of creating an image for the comparable product that the infringer could transfer to his product. It is not objectively capable of arousing an association with the comparable product in the mind of the addressee. If the similar features therefore only correspond in a directly descriptive element, there can be no question of unauthorised plagiarism (here: the purchasers of google-eyed plush toys directly understand the obvious abbreviation “GLUBSCHI” as a descriptive indication of the external features of the product).

“Secondary trade marks” of the agent do not fall under the scope of application of Art. 4 Trade Mark Protection Act (TmPA). If the agent adds to his supplier’s trade marks a separate trade mark under which he distributes the imported goods and makes them known in the relevant market, the principal can neither demand the cancellation nor the transfer of the secondary trade mark after termination of the contractual relationship. However, he may be able to take action against the registration or use of such trade marks on the basis of any contractual agreements, but not on the basis of Art. 4 TmPA.

Article 4 TmPA does not provide a remedy against trade mark piracy. If a third party deposits the trade mark of a party with better entitlement with whom he has no contractual relationship authorising him to use the trade mark, Art. 4 TmPA must be ruled out for lack of an authorisation to use the trade mark.

In contrast to the use that preserves the right, vicarious use by the agent cannot suffice as a third-party use that creates the right, thus creating a prior better entitlement on the part of the principal to the trade mark. In this context, the agent is not a “third party”. The vicarious use by the agent does not lead to the creation of a separate right of the principal to the trade mark deposited by the agent that would otherwise not exist.