Design Law: When It Comes To Watches Details Matter (4A_565/2016)

Author:Dr. Simone Brauchbar Birkhäuser
Profession:CMS Cameron McKenna Nabarro Olswang LLP
 
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In Switzerland everyone agrees: One watch is not like the other watch and details matter. The Swiss Federal Supreme Court in one of its rare cases in design matters just confirmed this view under several aspects (see here).

The case involved two Swiss producers of very sophisticated and high priced watches. The Swiss Federal Supreme Court had to assess whether the cantonal court of Neuchatel was right to deny a violation of the plaintiff's design registration of a watch, the central feature of which is an ornament covering the clock face consisting of a flower with twelve petals. Instead of an hour hand, the petals of the flower are progressively illuminated along with the movement of time. Though, for the plaintiff it was not possible to reflect this feature in the drawings of the design registration.

The Swiss Federal Supreme Court made it once again clear that a design violation has to be assessed exclusively on the basis of the registered design and not based on the model actually sold on the market. Details and concepts of a design that are not visible in the registration may not be taken into account. Therefore, the illumination of the flower petals - not represented in the design registration - is irrelevant when comparing the designs. Also, the fact that the plaintiff registered its design in black and white meant that differences in colour of the marketed watch models are not to be considered.

Under Swiss Design Law the general rule applies that when assessing a design violation one has to compare the overall impression of the opposite designs based on their characteristic elements under exclusion of details. Decisive is the overall impression as it remains in the short-term memory of an interested party looking at the designs one after the other in a relatively short...

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