A letter arrives from a law firm you have never heard of. Their client wants to register a name close to yours. They say your mark has not been used in Switzerland for years. They ask you to show otherwise.
You know the mark is in use. It is on your packaging, your invoices and your website. But showing what was on the market three years ago is harder. The letter asks for exactly that.
The five-year rule
A Swiss trade mark right starts with registration, but five years without use can cost you the right.
In Switzerland a trade mark right is established on entry in the Register, kept by the Swiss Federal Institute of Intellectual Property (IPI). That is Article 5 of the Trade Mark Protection Act. Under Article 10, a registration runs ten years from the filing date. It can be renewed for further ten-year periods.
Registration alone does not keep the right. Article 11 paragraph 1 says a trade mark is protected if it is used for the goods or services it is claimed for. Article 12 paragraph 1 adds the consequence. Suppose the owner has not used the mark for those goods or services for five years in a row. Then the owner may no longer assert the right. The five years count from the end of the opposition period or proceedings. The exception: proper reasons for non-use.
There is a way back. Under Article 12 paragraph 2, if use resumes after more than five years, the right is restored from the original priority date. That does not apply if someone invoked non-use first.
Who has to prove what
The person claiming non-use must back up the claim; after that, proving use is the owner's job.
Article 12 paragraph 3 splits the burden in two sentences. Any person who invokes non-use of a trade mark must substantiate the claim. Evidence of use must be provided by the owner of the mark.
So the other side goes first. Then the evidence of use is your job, often for years well in the past.
What counts as use
Use means the mark on the claimed goods or services, in close to its registered form, by you or with your consent.
Article 11 describes use in three paragraphs. Paragraph 1: use for the goods or services the mark is claimed for. Paragraph 2: use in a form not significantly different from the registered mark also counts. So does use for export. Paragraph 3: use with the owner's consent, for example by a licensee, counts as use by the owner.
So your evidence has to show the mark, the goods or services, the date, and any consent. Whether a set of documents is enough is for the IPI or a court. This article does not say how they weigh it.
Why evidence collected after the letter is weaker
Everything you gather after the letter carries one date: the day you gathered it.
When the letter arrives, you start gathering: invoice exports, website screenshots, warehouse photos. All of it carries one date: today.
A screenshot shows the website on the day you took it. An exported invoice carries the export date; the date printed inside is a claim the file cannot back up. A file's modification date can be set to anything. A timestamp cannot be added backwards. So a record created today can only prove what existed today.
A routine of dated evidence
Seal the evidence while the use is happening, one folder version per quarter, so each record carries its own date.
When you seal a document on Swiss Trust Layer, a cryptographic fingerprint (hash) of the file is computed. Only that fingerprint, never the file, goes to Swisscom Trust Services, the qualified trust service provider. It signs the fingerprint with a key that never leaves its hardware. The signature carries a timestamp under RFC 3161.
Each sealed folder version gets a certificate of proof, a signed PDF. It lists every file with its fingerprint and the sealing time in UTC. Any later change to a file gives a different fingerprint, so the change is detectable.
A folder has a version history. Each version is sealed separately, with its own fingerprint, timestamp and certificate. Keep one folder per mark. Add one new version each quarter, with a note naming the market and product line. Over five years, that is twenty dated versions. What goes in each:
- The current catalogue or price list showing the mark on the goods or services.
- Invoices and delivery notes from the quarter that show the mark.
- Photographs of packaging, labels and shop displays.
- Captures of the website and online shop pages where the mark appears.
- Where a licensee uses the mark, the licence and the licensee's own evidence of use.
One practical point. The certificate's QR code opens a public verification page. Both show the account holder's name, file names and fingerprints to anyone with the link. Keep personal data out of file names.
Anyone can check a sealed PDF at swisstrustlayer.com/validate, with no account. It reports who signed, when, and whether the content changed after signing. It does not store the document. Under Article 41(2) of the EU eIDAS Regulation, a qualified electronic time stamp is presumed to show the right date and time. The data bound to it is presumed intact.
The limit, stated plainly
A seal proves the file existed unchanged on that date; it does not prove the use was real or enough.
The seal does not prove that the use shown in the file was genuine. It does not prove the use took place in Switzerland, related to the goods or services claimed, or was sufficient. A sealed photograph proves the photograph existed that day, not that the box in it was ever shipped. Whether the use meets Articles 11 and 12 is for the IPI or a court. What the seal removes is one argument: that your evidence was put together after the letter arrived.
Sealing old documents after a challenge dates them to the sealing day, not to the years they describe. The routine only works if it starts before anyone asks.
One step this week
Pick one mark, seal this quarter's evidence of use today, and put the next quarter in your calendar.
Pick one registered mark. Create a folder and add this quarter's catalogue, a few invoices that show the mark, and some packaging photographs. Seal it with a note naming the quarter and the market. The mechanism is on how it works. See also version history and how to read a certificate of proof.
Seal your first document on Swiss Trust Layer and date this quarter's proof of use before anyone asks for it.
