Facts
Intershop Holding AG, Zurich, was founded on June 1, 1962 and registered in the Commercial Register the following day. Its purpose is mainly to hold interests in domestic and foreign companies. Interstop AG has existed since October 6, 1966 and was initially headquartered in Zurich before moving to Zug on June 28, 1968. Its purpose is the acquisition, sale and management of assets of all kinds, particularly intellectual and industrial property rights.
On November 8, 1966, Intershop Holding AG drew Interstop AG's attention to the risk of confusion created by the choice of its company name. As the efforts to persuade Interstop AG to change its name were unsuccessful, Intershop Holding AG filed a lawsuit against Interstop AG in March 1969, requesting that the defendant be prohibited from using its company name and that its deletion from the Commercial Register be ordered.
Considerations
The Federal Supreme Court states that the company names of public limited companies must be clearly distinct from any company already registered in Switzerland (Art. 951 para. 2 CO). Since companies are free to choose their company name within the general rules on company naming, strict requirements must be placed on distinctiveness, especially when it comes to fantasy designations.
In the present case, the companies' names consist mainly of the foreign words "Intershop" and "Interstop", which differ only by one consonant and are therefore confusingly similar. The common abbreviation "AG" also increases the risk of confusion. The Federal Supreme Court sees the possibility of confusion and misleading the public, as companies are generally tend to be abbreviated by the mere use of their characteristic component.
Contrary to the view of the cantonal court that the risk of deception is only relevant within the same industry, the Federal Supreme Court holds that Art. 951 para. 2 CO does not ask whether the companies are active in the same or different industries. Rather,…