Decision of the President of the Upper Court OW of December 30, 2011
It is questionable whether Art. 5 lit. c UCA can be successfully invoked in the present case. The provision regulates the so-called direct transfer of services. This concerns the takeover or exploitation of any kind of marketable product without own reasonable effort by means of a technical reproduction process. Such a marketable product would be, for example, a computer program, a music CD, specialist information, etc. (Birkhäuser, loc. cit., N. 23 and N. 32 f. on Art. 5 UWG). The applicant does not claim that the opponent takes over or exploits the products it carries, for example by reproducing its nozzles identically by means of a technical copying process without any reasonable effort of its own. Rather, it complains that the opposing party uses photos of its products in its documents. It is true that photocopying is also considered a technical reproduction process (Brauchbar Birkhäuser, loc. cit., n. 33 to Art. 5 UWG). However, the adjective “ready for the market” restricts the object of protection to concrete, elaborated products which are economically exploitable in their own right and for which there is therefore a market. However, the product concerned does not have to be intended for the market or purchasable, so that also independently usable parts (e.g. instructions for use), intermediate products or economically usable data collections and computer programs for personal use are covered (Brauchbar Birkhäuser, loc. cit., n. 24 to Art. 5 UCA). Only under this condition can, for example, the reproduction of individual images from a catalog be unfair. The photocopying of other people’s images is therefore not to be qualified as unfair under Art. 5 lit. c UWG in every case, as the applicant apparently believes with reference to a doctrinal opinion (cf. David/Jacobs, Schweizerisches Wettbewerbsrecht, Bern 2005, 105, N. 379 f.). Whether the photos and construction drawings used by the applicant are commercially independently exploitable marketable work results is unclear and can be left open at this point, since the applicant is in any case able to base her claim on other legal grounds according to the following explanations.