Protection under Art. 956 CO via HR entry vs. trademark protection under MSchG — differences, overlaps and when a trademark application pays off.
Many Swiss founders believe the HR registration of the firm name automatically grants comprehensive trademark protection. It does not. Firm name protection under Art. 956 CO and trademark protection under the Trademark Act (MSchG) are two different regimes — with different protection scope, reach and costs.
Note: For formation itself see Founding a GmbH and Founding an AG.
The two protection regimes compared
| Aspect | Firm name (Art. 956 CO) | Trademark (MSchG) |
|---|
| Legal basis | Art. 944–956 CO | Trademark Act (MSchG, SR 232.11) |
| Protection trigger | HR entry | Registration at IGE (Federal Institute of Intellectual Property) |
| Protection subject | Designation of the business | Designation of goods/services |
| Geographic scope | Sole proprietorship: seat municipality; AG/GmbH/etc.: Switzerland | Switzerland (national) or international via Madrid |
| Protection duration | Unlimited as long as in HR | 10 years, renewable (CHF 700) |
| Cost | Included in HR fee (CHF 80–420) | CHF 550 base for 10 years, +CHF 100 per additional class |
| Application time | Immediate with HR | 4–8 months standard, 1–2 months accelerated |
| Classes | Not relevant | Nice Classification, 45 classes |
| Typical disputes | Confusion in HR, non-compete | Trademark infringement, dilution, domain disputes |
What Art. 956 CO protects
- Identical firm designations — no one can register a GmbH/AG with identical name
- Confusingly similar designations in commerce (Art. 956 para. 2 CO)
- Switzerland-wide for AG/GmbH/cooperative/association/foundation (Art. 951 para. 2 CO)
- Only seat municipality for sole proprietorships (Art. 951 para. 1 CO)
Limits:
- Protection only as firm — when someone uses the name as product name, Art. 956 CO often doesn't apply — that's where trademark steps in
- Descriptive terms hard to monopolise
- Generic names not protectable
What trademark MSchG protects
A registered trademark protects the sign (word, image, combined) for specific goods or services:
- Scope: only for registered classes (Nice 1–45)
- Form: exclusive right to use the sign in the registered classes (Art. 13 MSchG)
- Standing: trademark owner can demand cessation, damages, destruction of infringing goods
Advantage over firm name protection:
- Also protects use as trademark/product name
- Switzerland-wide automatically
- International via Madrid extendable to 130+ countries
- Vinculation with domain names possible (UDRP for cybersquatting)
When trademark application pays off
Worth it:
- Firm name also becomes product/service designation
- Switzerland-wide or international activity
- Name central to marketing (logo, website, packaging)
- Domain-name-protection package
- Distinctive name (not generic)
Optional:
- Purely local small sole proprietorship without growth plans
- Purely descriptive/generic names
- Tight marketing budget with other priorities
How a trademark application works
1. Pre-research
Check at Swissreg (free, surface) or via trademark lawyer (thorough, fee).
2. Application at IGE
Online via www.ige.ch. Required: trademark wording/logo, classes per Nice, owner data.
3. IGE review
- Formal review (1–2 weeks)
- Substantive review (2–4 months): distinctiveness, absolute grounds for refusal
4. Publication + opposition deadline
Publication in Swiss Trademark Register. 3-month opposition window for older trademark holders.
5. Registration + protection start
After opposition deadline (or successful defence): full protection. 10 years, renewable.
Conflicts between firm names and trademarks
Older trademark vs. younger firm
- Trademark owner can act against HR entry (cancellation action)
- HR office does not check trademark rights before entry — founder responsibility
- Practical tip: trademark search at Swissreg before firm name choice
Older firm vs. younger trademark
- Opposition within 3 months of trademark publication (Art. 31 MSchG)
- Invalidity action at civil court for violated trade-establishment
Combined strategy: domain + firm + trademark
Best practice for Switzerland-wide/international firm:
- Before formation: check domain availability (.ch, .com, possibly .eu)
- Before formation: trademark search at Swissreg
- HR entry with desired name
- Trademark application at IGE shortly after
- Domain registration in all relevant TLDs
- If international: WIPO Madrid via IGE
Typical cost: HR CHF 420 + trademark CHF 550 (1 class) + domains CHF 50–200/year = CHF 1,020–1,170 startup cost for clean protection.
When legal advice is useful
- Before any trademark application with significant business value — thorough pre-research + class strategy
- In trademark conflicts — opposition, action, defence
- International application — Madrid procedure, country choice, translations
- In domain disputes — UDRP, WIPO procedure
- Buying or selling an existing trademark — transfer agreement, valuation
- Trade-establishment proof — complex market research and evidence topics
Related topics
Official sources
Frequently asked questions
Does the HR entry automatically protect my firm name as a trademark?
No. HR entry protects the firm name only as firm (Art. 956 CO) — geographically restricted to the seat municipality for sole proprietorships; Switzerland-wide only as firm (= designation of the business). Trademark protection for designation of goods/services comes only through separate trademark application at IGE.
What does Art. 956 CO specifically protect?
Art. 956 CO protects the firm registered in the HR from use by others in commerce in a way that can lead to confusion. Protection is Switzerland-wide for AG/GmbH/cooperative/association/foundation (from HR entry); for sole proprietorships only in the seat municipality.
When should I register a trademark?
When the firm name also becomes product/service designation, when you want to operate Switzerland-wide or internationally, when the name is central to marketing, or when you want to build a domain name + trademark package. Trademark application at IGE: CHF 550 for 10 years base rate.
Can a trademark block an older firm name?
Yes, a registered trademark can act against a younger firm name when this causes confusion in commerce. Conversely an older firm name (with comprehensive renown) can block a younger trademark — typically through trade-establishment.
What does a Swiss trademark application cost?
At IGE: CHF 550 base for 10 years (1 class). Additional classes: CHF 100 each. Accelerated: additional CHF 400. International extension (Madrid Agreement): per country typically CHF 500–2,000.
Does my GmbH need a trademark?
Not mandatory but often useful. If the firm name is used in marketing (logo, website, products) and you operate Switzerland-wide or internationally: yes. For purely local small service businesses: often not necessary.
What if someone registers my firm name as a trademark?
If you have older rights (HR entry, trade-establishment), you can file opposition (within 3 months of trademark publication) or action for cancellation. If already registered, action for invalidity per Art. 52 ff. MSchG.