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 period of time. In spite of this, the Swiss Federal Supreme Court argued in the subject case that details play an important role in sectors where the freedom of the designer is limited like in the case of jewellery and watches. The argument was that because of this restriction the purchaser pays greater attention to details and they influence his perception of the product. Therefore, the mere fact that the design of both watches included the representation of a flower with twelve petals was not enough to affirm a violation of the older design. In contrast, details like the butterflies on the pointer of the defendant's watch or the difference in size of the flower petals in relation to the clock face mattered.
The Swiss Federal Supreme Court further considered that consumers would pay special attention to details in the watch sector because the watch companies constantly develop and produce new watch models and thus consumers are used to noting differences in details. One might add that where – as in the subject case – the watches are very high priced, customers will examine a watch very diligently before purchasing it. However, the Swiss Federal Supreme Court confirmed that the price and other marketing aspects of a design may not be taken into account when assessing a design violation under Swiss Design Law.
Originally published 14 August 2017
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.