Decision of the Swiss trademark owner to oppose the use of this trademark on foreign products imported into Switzerland

Facts

The English company Electric and Musical Industries Ltd. (EMI), the owner of the Swiss trademarks "His Master's Voice", "Columbia" and "Twin Notes", filed a complaint against the company Delachaux and Niestlé SA, which had imported and sold American records bearing the same trademarks in Switzerland. The Neuchâtel Indictment Chamber dismissed the case, considering that the use of these trademarks by the American companies was not unlawful. EMI then appealed for nullity to the Federal Tribunal.

Considerations

The Federal Tribunal upholds the appeal and annuls the judgment of the Indictment Chamber. It considers that, although the affixing of the trademarks on the American records was lawful in the country of origin, their use in Switzerland by a third party who is not the Swiss trademark owner is unlawful under Art. 24 let. c of the Trademark Act (TMA). Indeed, the Swiss trademark owner has an exclusive right of use on Swiss territory, regardless of…