Swiss products and services enjoy an excellent reputation worldwide, being associated with positive references such as quality, precision, authenticity and luxury. However, this enviable image has dragged unauthentic usage of markers of the Swiss origins such as the Swiss cross and "made in Switzerland" references.
To fight against this trend the Swiss legislators enacted the new Swissness legislation, which comes into force on January 1 2017 and aims to strengthen protection for the 'Made in Switzerland' designation and the Swiss cross to preserve the reputation of Swiss products and origins.
The bill amendment links in the Trade Mark Protection Act, with additional specific regulations concerning the geographical origin of goods and services. The new legislation also introduces the possibility of being permitted to affix the Swiss cross to goods.
The main changes introduced are summarised here for the different categories of goods contemplated under the Act.
For natural and plant products, the criteria of the foodstuffs law and the place of harvesting prevail. This is stricter than the scope of Article 48a in the Trade Mark Protection Act, which applies to all natural products, including non-foodstuffs.
For foodstuffs, at least 80% of the weight of the available raw materials in Switzerland must actually originate in Switzerland. For milk and milk products, this figure is 100%. Calculation principles as well as exceptions are set forth in the bill to take into account local production capacities in particular.
For industrial products at least 60% of the manufacturing costs must occur in Switzerland. All production costs can be taken into account, as well as costs for research and development, quality assurance and certification. In addition, at least one essential manufacturing step must have taken place in Switzerland.
Product-specific ordinances, such as for watches and cosmetic products, may further provide additional rules of application.
The current amendment further provides for promoting individual production steps of products which otherwise would not meet the "Swissness" criteria. Those individual steps must be completely performed in Switzerland. However, the Swiss cross may not be used on such products.
For services, a company must be headquartered and have an actual administrative centre in Switzerland to be qualified under the new Act.
A register for geographical indications of source for non-agricultural products and a geographical trade mark are also importantly established. Registration of geographical indications of source for goods such as Gruyère for cheese and Switzerland for watches can accordingly be protected as geographical trade marks. This will significantly simplify protection and enforcement abroad.
Finally, the Swiss cross may now be used on Swiss goods, while it has so far only be permitted for Swiss services.
The new provisions of the Swissness act therefore help Swiss economic agents to defend their activities better. We will closely monitor application of those by the courts.
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Eugène Blanchard |
