02 April 2025

Intellectual Property for Startups: Early Protection, for long-term Success

  • Articles
  • Legal
  • Data / Technology / IP

This guide offers key insights on IP—from trademarks to patents—helping you protect ideas and turn your IP portfolio into a strategic asset for long-term success.

  • Luca Hitz

    Legal Partner

  • Philipp Stadler

    Senior Legal Associate

Innovative business ideas and "first mover advantage" are essential cornerstones for a promising startup. To ensure their long-term market advantage and sustainable success, founders must deal with the protection of their IP early in the conception and development phase and take appropriate protective measures. After all, even the best idea or the best invention is worthless if it is not sufficiently protected allowing third parties to freely appropriate, replicate and commercialize it.

In short, every startup should thoroughly address the protection of its IP already at an early stage. This is not only essential for the long-term success story of the startup, but prudent investors will also regularly ensure that their target's IP is sufficiently protected, which means that dealing with the topic of IP is also key to successfully finding investors. As these rights often represent the core assets of the startup, this approach is not surprising. In fact, it is part of every investor's professional due diligence.

The following is a brief tour d'horizon of the key topics for startups in the field of intellectual property (IP):

IP Rights in Switzerland

In principle, a distinction can be made between IP rights that are protected by entry in an official register and those that arise independently of an entry (or where register entries are not possible in the first place). Trademarks, patents and designs are register rights in Switzerland. IP rights that do not require registration include, in particular, copyrights or rights derived from the Unfair Competition Act.

Trademarks

A trademark is an identifier that is used to identify the products and/or services of a particular company. A trademark serves to distinguish the products/services of a company on the market from the products/services of other companies, thereby establishing a clear reference to the specific company. The trademark therefore serves as an (operational) indication of origin.

In particular, the following can be protected as trademarks:

  • Word marks (graphically representable signs, for example words, letter/number combinations, abbreviations, slogans),
  • Figurative marks (pictorial/graphic representations, in particular logos, images),
  • Three-dimensional shapes,
  • Combinations of the above elements,
  • Tone sequences (so-called acoustic marks)

Signs that are in the public domain (or belong to the public domain) and must therefore be excluded from monopolization cannot be protected. These are, in particular, descriptive signs, i.e. terms or graphic elements that directly or indirectly describe the designated product/service (e.g. "computer center" for hardware and software).

A trademark is protected by filing an application for registration with the competent office. The so-called "registration priority" applies: first come, first serve! If the desired (identical or similar) trademark is already protected for the desired goods/services, the earlier trademark takes precedence. The owner of the earlier trademark can prohibit third parties from using this trademark (or a similar trademark) and, if necessary, enforce his rights in court. It is therefore highly advisable to carry out a trademark search before using, marketing or registering a trademark in order to prevent conflicts with existing trademarks.

As soon as the startup's brand has been established and before any significant marketing efforts are made, the brand should be registered in the relevant markets. Establishing and maintaining a brand is often associated with a great deal of (time and cost) effort and represents a key success factor for the startup. A rebranding enforced by the owner of an older identical or similar brand is regularly associated with significant effort and market loss. These risks can be substantially reduced by the measures mentioned above.

Trademark law represents a relatively simple and cost-efficient IP protection. A trademark is protected for ten years from the date of registration. After that, it can be renewed as often as required for a further ten years.

Patents

Patents protect technical inventions. A patentable invention solves a specific problem by means of technology. There are product patents (e.g. patents on machines, tools, chemical substances) and process patents (e.g. a patent on a production process).

All (i) new and (ii) industrially applicable inventions that are based on (iii) an inventive step are patentable. Novelty exists if the invention does not fall within the so-called "state of the art", i.e. the same invention must not have been made available to the public in any way anywhere else in the world by anyone else. Furthermore, an invention must not be obvious to a hypothetical skilled person on the basis of the available prior art. A certain degree of inventiveness is therefore required based on the entire knowledge that is already established. Finally, the invention must be industrially applicable (realizable). Discoveries, scientific theories and mathematical methods, aesthetic creations, plans, rules and procedures for intellectual activities, games or business activities are completely excluded from invention protection.

Contrary to what is often assumed, software inventions can be patented in many countries under certain conditions - provided they solve technical problems (so-called "computer-implemented inventions").

In order for a patent to be protected, it must be applied for registration at the competent patent office. The patent is protected for a maximum of 20 years from the date of application. It is not possible to extend patent protection. An exception to this are the supplementary protection certificates (for medicinal and plant protection products), as the approval procedures in this area can take an extremely long time, during which the protection period already runs. Once protection has expired, the invention may be utilized without restrictions by third parties.

Designs

A design protects designs of products or parts of products, which are characterized in particular by the arrangement of lines, surfaces, contours or colors or by the material used, as a design, i.e. the external, visually perceptible design (appearance) of a product or a product component. E.g. packaging, surface structures, the design of furniture, watches, jewelry, articles of daily use (e.g. hinges, bags, taps), etc.

No design protection is granted if the features of the design are exclusively due to the "technical function of the product", i.e. if a particular design is necessary for the product or product component to perform its technical function at all. Furthermore, ideas and concepts or manufacturing processes, for example, cannot be protected under design law (the latter may, however, be protected under patent law).

A design can be protected if it (i) is new and (ii) has individual character. A design is new if no identical design has been made publicly available prior to the application. A design has individual character if it differs sufficiently from existing designs, i.e. not merely in insignificant features.

A design is protected by applying for registration at the competent registration office. Once successfully registered, the design is protected for five years and can then be renewed four times for a further five years. The maximum term of protection is therefore 25 years in the best case.

Copyright

Copyrights protect intellectual creations of literature and art with individual character (= works). Such works include literary works, newspaper articles, scientific treatises, texts on a website and in advertising, photographs, films, buildings, works of art of all kinds, choreographies, technical drawings, plans and pieces of music or parts thereof. Computer programs and software (in particular, the source code of software) are also protected by copyright. Abstract ideas or concepts, on the other hand, are not protected by copyright.

The individual character is the decisive criterion for distinguishing protected from non-protected works. However, it is practically impossible to draw clear lines in this respect. Accordingly, it is extremely difficult in practice to distinguish between works that have an individual character and those that do not. Only photographs have recently been granted copyright protection regardless of their individual character.

There is no (public) register for copyrights in Switzerland. In contrast to the above "register rights", they arise automatically at the time of creation of the respective work. Copyright protection is limited in time and expires in Switzerland 70 years or, in the case of computer programs, 50 years after the death of the author. In the case of photographs without individual character, the term of protection is 50 years after the creation of the photograph.

Trade secrets

Trade secrets are information that is not publicly known or accessible and is usually essential to a company, even business-critical (e.g. concepts, ideas, recipes, know-how, discoveries). Consequently, the company has a legitimate interest in maintaining confidentiality.

However, trade secrets are not IP rights in the traditional sense, i.e. they cannot be protected under any of the “classic” IP rights. As a result, they represent an extremely vulnerable asset for companies, especially startups. This raises the question of alternative protection options.

As a rule, trade secrets need to be contractually protected by means of confidentiality agreements (NDAs). In contrast to traditional IP rights, however, the confidentiality obligations under an NDA only apply between the parties that have contractually agreed to the terms of the NDA. A third party who receives the information protected under an NDA is generally free to use the information. Under certain circumstances, however, trade secrets may also be protected under the Unfair Competition Act.

When drafting NDAs, it is advisable to assess each case and its specific circumstances carefully. This is particularly important when formulating the term "confidential information" and the permitted scope of use of this information. Otherwise, there is a risk that the recipient of the information will be too restrictive or that the provider of the information will pass on information without sufficient protection. In any case, startups are advised to only disclose confidential information under a strictly formulated NDA (in their favor and including contractual penalties if the confidentiality obligation is breached) - even to investors.

Domain Name

The domain name (or simply "the domain") is also not a classic IP right but must be taken into account when defining an adequate IP strategy. A domain is a globally unique, unambiguous name for a logically delimited part of the Internet - for example, a website. It is therefore regularly an essential component of a company's general presence on the market and unmistakable identity on the Internet.

As part of a uniform "branding", the domain often corresponds to the company name or the brand under which products/services are offered via the domain. We recommend (as part of the naming process) researching the availability of suitable domains at an early stage and not limiting this research to the brand and company. Acquiring domains from someone else at a later stage can be very costly or even impossible under certain circumstances.

The domain can be "purchased" from numerous providers (so-called registrars, e.g. Hostpoint). There is no official register of domains.

Intellectual property (IP) is a decisive success factor for every startup. Companies that address the various forms of IP rights early on and implement targeted protection strategies can secure valuable innovations and mitigate the risk of costly disputes in the future. Neglecting this area can not only jeopardize the protection of important assets, but also significantly hinder the growth potential of the company.

The IP experts at the MME Startup Desk will be happy to help you develop a customized IP strategy and support you in all matters relating to the protection of your innovations.
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