The Denunciation of the German-Swiss Convention of April 13, 1892, Has No Retroactive Effect

Pursuant to Article 70 of the Vienna Convention on the Law of Treaties, signed on May 23, 1969, and ratified by Germany and Switzerland, the termination of a treaty under this convention takes effect without retroactive annulment of the said treaty.

Opposition of August 23, 2023 ch-B-06169-2020

In the context of an opposition, the Bundesverwaltungsgericht/RKGE ruled on appeal regarding whether the denunciation of the German-Swiss Convention on the Reciprocal Protection of Patents, Designs, Models, and Trademarks of April 13, 1892, takes effect with or without retroactive annulment.

Germany and Switzerland are parties to the Vienna Convention on the Law of Treaties, which they signed and ratified. Since this is an agreement between two contracting states, the said Convention is applicable pursuant to its Article 1.

The denunciation of the 1892 German-Swiss Convention took place in accordance with Article 56 of the Vienna Convention. The German-Swiss Convention does not contain any provisions on termination, denunciation, or withdrawal.

Article 70 of the said Convention provides that when a treaty ceases to be applied:

"Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty under its provisions or in accordance with the present Convention: a) releases the parties from any obligation to further perform the treaty; b) does not affect any right, obligation, or legal situation of the parties created through the execution of the treaty prior to its termination.

When a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the relations between that State and each of the other parties to the treaty from the date when such denunciation or withdrawal takes effect."

Thus, the denunciation of the 1892 German-Swiss Convention took effect on May 31, 2022, without retroactive annulment and was completely repealed on June 1, 2022.

In terms of proof of use, this convention provides a favorable regime, allowing the use on the territory of one party to be considered as proof of use on the territory of the other. However, to invoke it, the necessary conditions for its application must be met.

Indeed, only German and Swiss citizens, as well as citizens of third countries residing or established in Germany or Switzerland, can invoke the rights arising from the said Convention. Furthermore, it is implicitly required that the trademark whose use is invoked must be registered in both states, although these registrations do not need to be strictly identical but must coincide in their essential elements.