Well-known brands such as "Microsoft", "Apple" or "Coca-Cola" and many other internationally successful brands are not only known worldwide, but are also real crowd pullers. It is therefore tempting to use them in your own marketing to attract attention. But be careful! If you use these brands without the trademark owner's permission, you are entering tricky legal territory. In this blog, we'll show you what you need to bear in mind to avoid making costly mistakes.
What Is It All About? – A Look at Trademark Law
Many companies want to benefit from the popularity of well-known brands – whether on social media, through advertisements or via creative storytelling. However, there’s a fine line, which, once crossed, can lead to legal risks. Trademarks are generally protected by law. If a trademark is registered in the trademark register, the respective owner can generally prevent others from using it, if there is a likelihood of confusion. But what exactly does this mean?
What You Need to Look Out For
1. Registration in the Trademark Register – Where Does Protection Apply?
As a rule, a trademark is only protected in Switzerland once it has been entered in the Swiss trademark register. It is possible to register word marks, figurative marks or other forms, such as sound marks. In principle, only a registered trademark enjoys legal protection.
However, if a trademark is particularly well-known, protection can also extend to other countries. Particularly in the case of very well-known trademarks, such as "Microsoft", "Apple" or Coca-Cola", an entry in a foreign trademark protection register is therefore also sufficient.
2. Likelihood of Confusion – When Is It Given?
There is a likelihood of confusion if the sign you are using could be confused with a registered trademark in the eyes of the consumer. The likelihood of confusion is assessed on the basis of the following two criteria:
- Similarity of Signs: If the overall impression of your trademark is very similar to a registered trademark, there is generally a likelihood of confusion. If you want to advertise 1:1 with a trademark, this condition is definitely fulfilled. In addition, the better known a trademark is, the more likely it is that there is a likelihood of confusion.
- Similarity of the Goods or Services: In principle, you can only infringe a registered trademark if the products or services you offer are similar to those of the trademark owner. However, there are special rules for famous trademarks. Trademarks such as "Microsoft", "Apple" or "Coca-Cola" are protected even if your products or services are not similar to them at all. In the case of such famous trademarks, their reputation alone is sufficient to justify the assumption of a connection between your marketing and the trademark.
There is therefore a relatively high likelihood of confusion – especially if you use famous trademarks in your marketing. You are therefore generally not allowed to use the corresponding sign to identify your goods and services ("trademark use").
However, this does not mean that you are not allowed to use trademarks at all. You are permitted to use it, if the use is "non-trademark".
3. Exception: Non-Trademark Use
When is a use considered non-trademarked? By way of exception, the sign may be used if you are only objectively describing your own offer and the use of the third-party (in particular well-known or famous) trademark is indispensable or cannot be prevented. However, this only applies as long as the use clearly refers to your own offer and does not give the impression that there is a special relationship with the trademark owner or an entitlement to the trademark.
In this respect, the use of a third-party trademark may be permissible in rare cases. However, a marketing strategy should not be aimed at this exception – in such a case, there is a risk that the use would be classified as “trademarked” and thus infringe trademark law.
All in all, the borderline to trademark infringement is fluid – and the courts examine exactly how the overall impression is perceived by the average consumer.
How to Protect Your Company – Our Recommendations for You
1. Think Like a Brand Owner
Imagine someone using your company name or brand without your permission. Would that be acceptable to you? This perspective helps you assess the risks more effectively.
2. Check Your Marketing Carefully
Pay attention to where and how brands appear in your marketing. Whether in texts, as hashtags or in images – could it possibly give the impression that you are associated with a third-party brand? If so, you should be careful.
3. Use Alternatives
If you want to use someone else's brand name in your marketing, check whether there is a creative way to get by without the brand name. Instead of advertising "Apple-style smartphones", you could say, for example, "smartphones with a minimalist design and high user-friendliness" – just as effective, but legally safer.
4. Early Planning of the Marketing Strategy
Legal aspects must be included in the marketing strategy at an early stage to avoid unnecessary delays or legal risks.
5. Last but Not Least: Also Observe Unfair Competition Law
In this blog post, we have focused on trademark law. In addition to trademark law, unfair competition law must also be observed. This is about ensuring that your advertising is not misleading or otherwise so-called "unfair". Your advertising should make it clear that it relates to your own product or service – without suggesting an unfair connection to another brand.
Conclusion – Only Use Brands in Your Marketing with a Plan
The temptation to use well-known brands in your marketing is huge – but so is the risk. If you want to advertise with brand names, you need to know the legal boundaries and check carefully whether their use is permitted. If you're unsure, it's better to find creative ways that don't specifically mention third-party brands but are still effective. This will protect your company from unnecessary legal problems.
