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28 November 2016TrademarksJürg Simon

Brexit focus: a new national strategy

Not one day goes by without analysis, opinions and reality checks on what Brexit could mean for the EU and UK intellectual property community, Unified Patent Court, European Union trademarks, enforcement, exhaustion of rights, supranational jurisdiction issues, and so on. Most of these contributions focus on technical issues which are, of course, highly important. But, at least from the viewpoint of a non-EU but still European country like Switzerland, there are also more strategic aspects to being outside the union.

Key strategic questions include: what kind of IP strategy, if any, should and could a non-EU European country develop and apply; and what long-term goals should be pursued, taking into account means, resources and the international legal framework? The questions might be of some importance, since leaving the EU means that a country is no longer automatically embedded in EU IP strategy.

EU IP strategy, as understood from outside the EU, is based on a top-down approach, defining long-term visions, goals and sub-strategies via green and white papers, which are pursued and realised. This strategy aims to realise a comprehensive system for the protection and enforcement of IP rights and their limitations, as well as balance these rights against competition and free trade considerations while taking care of a complex split of competencies between the EU and its member states.

What about an IP strategy outside the EU, for example that in Switzerland? The basic difference from an EU IP strategy is that there are very few general long-term visions, goals and policies. The approach is much more bottom-up—one could even say situational, almost always politically initiated and not normally triggered by the administration.

The Swiss method

In general terms, Swiss IP strategy is based on regularly reviewing IP legislation with a view to new developments, for example, the so-called Swissness legislation on the commercial use of indications of origin on the Swiss marketplace that was triggered by the remarkable misuse of signs such as “Swiss made” and which enters into force on January 1, 2017.

Swiss strategy also takes into consideration the often diverse interests of research and development, users of the IP system, consumers and others affected by protective rights, as well as ethical aspects and aspects of development and environmental politics.

The strategy aims to actively integrate Switzerland into the international IP framework (such as the European Patent Office), guaranteeing appropriate, effective protection of IP at the international level, thereby regularly favouring multilateral over bilateral solutions (the relationship with the EU is the exception) and at the same time actively integrating IP-related standards (for example, for geographical indications) into the Swiss network of free trade agreements.

"The basic difference from an EU IP strategy is that there are very few general long-term visions, goals and policies."

This includes the aim of Switzerland being perceived as a competent and reliable partner for IP matters at the international level.

On the operational level, according to its “Strategy 2014–2018”, the mandate of the Swiss Federal Institute of Intellectual Property (IPI) is to provide domestic and foreign businesses with an appropriate, effective, dependable and easy-to-use protective system for IP. This is so that incentives are provided for the creation and optimal exploitation of intellectual economic and cultural goods in the interests of the Swiss economy.

To achieve these goals, compatibility with international IP systems must be maintained for the examination, granting and administering of IP rights while, at the same time, “the possibility of autonomous functionality for our national system is safeguarded”, as the strategy says.

Procedures should be simple, transparent, expeditious and as economical as possible, and decisions must be legal, appropriate and as predictable as possible. In addition, the IPI must provide information with a view to optimising the opportunities of individuals and businesses to use the IP system for their economic success.

In everyday practice, there might be—with the exception of the enforcement system, which is totally independent from EU institutions—no noticeable difference between the two strategic approaches. The fact is, however, that it is possible and may even be necessary to define something like a national IP strategy for countries outside the EU.

Jürg Simon is a partner at Lenz & Staehelin in Switzerland. He specialises in IP and competition matters, and is a former director at the Swiss Federal Institute of Intellectual Property. He can be contacted at: juerg.simon@lenzstaehelin.com

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