Facts
In 1966, Hafner, Vögtlin and Misteli founded Hafner AG with its registered office in Basel. The three shareholders formed the Board of Directors, with each having individual signing authority. The trademark "Hafner-Trockner" was registered in the trademark register in 1966.
In view of impending disputes between the shareholders, Hafner and Vögtlin secretly transferred the trademark to Hafner in June 1967, behind Misteli's back. For this purpose, Vögtlin signed a transfer declaration in which he falsely certified that Hafner AG was transferring the trademark to Hafner. Misteli was able to prevent the registration in the register and changed the trademark to "Hafag-Trockner".
The Criminal Court and the Court of Appeal convicted Hafner of attempted unfaithful management and unfair competition, as well as Vögtlin of attempted unfaithful management. In addition, both were found guilty of forgery of a document.
Considerations
The Federal Supreme Court upheld the convictions. It stated that the declaration made by Vögtlin, that Hafner AG was transferring the trademark to Hafner, was factually untrue, as the company did not want this. For the application of Art. 251 of the Swiss Criminal Code, it is not relevant whether the perpetrator was authorized to certify, but whether the certified fact was true.
Furthermore, the Federal Supreme Court determined that the transfer declaration constituted a document within the meaning of Art. 110 No. 5 of the…