05 February 2026

Risk of Confusion with Weak Sign Components

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  • Compliance
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  • Data / Technology / IP

In its decision of 26 June 2024 concerning “tempoX | Tempo Swiss” (File No. ZK1 2022 29), the Cantonal Court of Schwyz dismissed claims based on company law, trademark law and unfair competition law, despite the parties’ close geographic and sectoral proximity. The decision provides guidance on the decisive role of distinctive character and the limited scope of protection afforded to weak or descriptive signs.

  • Noëlle Glaus

    Legal Associate

  • Luca Hitz

    Legal Partner

Company Law

With regard to company names, the court reaffirmed the principle that geographic and business proximity requires a stricter standard of differentiation. At the same time, it emphasized that this standard must not be overstretched, particularly given the increasing difficulty of creating new company names.
The central issue was the assessment of the shared element “tempo”. In the context of temporary employment and recruitment services, the term was held to form part of ordinary language, suggesting either “temporary” or “speed”. While not purely descriptive, “tempo” was considered to be derived from common usage (cf. Federal Supreme Court decision of 1 May 2024, “integra, 4C.31/2003, E. 1.2) and therefore to possess only weak distinctive character, being widely used in the relevant industry. As a consequence, “tempo” lacked sufficient individualising power and displayed, at best, minimal imaginative content. Thus, “tempo” qualifies as a non-distinctive component of the company name.

Against this background, even minor deviations (notably the additional “X” in the claimants’ firm names and the geographical qualifier “Swiss” used by the defendant) were sufficient to exclude companylaw confusion, even though higher requirements for distinctiveness applied due to geographic proximity and largely overlapping fields of activity. Isolated instances of misdirected mail or emails were treated as sporadic errors, which, given their lack of quantitative significance, were held insufficient to establish a legally relevant likelihood of confusion. This is somewhat surprising, given that actual instances of confusion clearly indicate that there is a genuine risk of confusion.

Trademark Law

The trademark claims failed primarily due to insufficient substantiation. While the determination of the relevant public and its level of attention constitutes a question of law, the court held that the claimant must first plead the concrete circumstances under which the services are requested by the customer groups covered by the specific services. In the absence of such pleadings, the level of attention and consequently the similarity of the signs could not be assessed.

In line with the principle that the concept of likelihood of confusion is defined uniformly across the law of trademarks and commercial designations, these considerations also apply in trademark law, although on a different assessment basis. Accordingly, the trademark element “tempo”, even when combined with the descriptive addition “Menschen für Stellen”, was classified as weak. Where a trademark has limited distinctiveness, even small differences suffice to exclude confusion. The absence of the “X” and the presence of the geographic addition “Swiss” in the defendant’s trademark therefore ensured sufficient differentiation.

Unfair Competition Law

Finally, the court dismissed the unfair competition claims. In the absence of substantiated allegations regarding inherent or acquired distinctiveness, it was impossible to determine the degree of recognition of the sign. Moreover, no sufficiently detailed submissions were made concerning the distinctiveness within the relevant target audience. Protection under unfair competition law consequently failed at the level of determining distinctive character. Applying the uniform concept of confusion, the likelihood of confusion was accordingly denied.

Even the immediate geographic proximity of the parties and the employment of former staff members were deemed insufficient to establish confusion under unfair competition law. The law does not protect against mere imitation but requires a qualifying likelihood of confusion. Given the weak distinctive character of the claimant’s sign, the alleged misattributions were not significant enough to justify such a finding.

Conclusion

The decision confirms that, even where parties operate in close geographic and economic proximity and a stricter standard of assessment is generally applicable, the weak distinctiveness of a shared sign component considerably limits the scope of protection. In such cases, minor differences may suffice to establish adequate differentiation. 

 

 

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