Conviction for multiple counts of breach of trust and unfair competition

Facts

The appellant [X.] worked at [AB. GmbH] , whose business was the distribution of video and computer games as well as computer software. During his employment, he founded the competing company [AC. AG] on June 1, 2006. He is accused of breach of trust and unfair competition through various actions, including the takeover of the business premises, distribution contracts, as well as suppliers and customers of [AB. GmbH] by [AC. AG] . The District Court of Zurich convicted [X.] on March 24, 2011 on numerous counts of breach of trust (Art. 158 para. 1 in conjunction with para. 3 SCC) and multiple counts of unfair competition (Art. 23 in conjunction with Art. 3 lit. b, Art. 3 lit. d and Art. 5 lit. a UCA) to a custodial sentence of 3½ years and a fine of CHF 2,500.--. The Higher Court of the Canton of Zurich found [X.] guilty on November 6, 2012 on the remaining counts of breach of trust (Art. 158 para. 1 and para. 3 SCC) as well as unfair competition (Art. 23 in conjunction with Art. 3 lit. b, Art. 3 lit. d and Art. 5 lit. a UCA) and sentenced him to a custodial sentence of 27 months and a fine of CHF 2,500.--. It declared the custodial sentence of 6 months to be enforceable and suspended the remaining 21 months with a probationary period of 4 years.

Considerations

1. Risk of confusion between the companies "

[AC. AG] " and "[AB. GmbH] " The Federal Supreme Court confirms the conviction of the appellant for unfair competition under Art. 23 in conjunction with Art. 3 lit. d UCA. The two companies are not sufficiently distinct from each other, so that there is a risk of confusion. Decisive are the overall impression and the attention and perception of the average public. Even if the companies can be distinguished when compared simultaneously, they must be able to be distinguished in memory. Since the companies operate at the same location, in the same industry and target the same customer base, the similarity of the company components "A" and "C" or "A" and "B" is sufficient to establish a risk of confusion. 2. Unauthorized use of customer data of [AB. GmbH] The Federal Supreme Court also confirms the conviction of the appellant for unfair competition under Art. 23 in conjunction with Art. 5 lit. a UCA. As an employee of [AB. GmbH] , the appellant had access to the customer data of this company. By passing on this data to the competing company [AC. AG] , which he had founded, he used…