From January 1 2017 a new set of rules will enter into force, defining the requirements regarding the use of terms such as 'Swiss', 'Swiss made' and 'Swiss quality', as well as the use of pictures including the Swiss flag (a white cross on a red background) or any symbol referring to Switzerland (eg, a picture of the Matterhorn). The purpose of the new rules is to clarify when a geographical indication such as 'Swiss' can be used and to increase legal certainty. The new rules also set out how to protect geographical indications outside Switzerland on the basis of bilateral or multilateral treaties.
The basic principle is that geographical indication can be used only if it is correct and not misleading.
The rules contain the following provisions to define the geographical origin of products and services:
- The statutory provisions define the origin of natural products (eg, the place of harvest for a crop or the place where meat animals have lived most of their lives).
- Foodstuffs can be branded as Swiss if a minimum of 80% of their weight is of Swiss origin and if an important part of the manufacturing process takes place in Switzerland. Regarding the calculation of the 80% level, a detailed set of rules applies. Raw materials which cannot be produced in Switzerland (eg, coffee or cacao) must not be included in the calculation. However, all milk and milk products must be included. Water must not be included unless it defines the character of the product (eg, mineral water) or serves to dilute a product (eg, fruit juice). As an example, the milk content in Swiss chocolate must be Swiss and the chocolate must be produced in Switzerland, but the cacao and water content do not count.
- To brand an industrial product as Swiss, at least 60% of the manufacturing costs must be spent in Switzerland and an important part of the manufacturing must take place there. Only manufacturing costs are relevant (including research and development costs), not packaging and distribution costs. Raw materials which cannot be produced in Switzerland do not count and if raw materials are not produced in Switzerland in sufficient quantity, they are of partial relevance only.
- The 60% rule applies for watches (including smartwatches) and the technical development of the watch must be conducted in Switzerland.
- Services can be labelled as Swiss if the enterprise has its domicile and administration in Switzerland.
The rules also contains two newly introduced possibilities for obtaining special protection for geographical indications:
- a new register for geographical indications (a register already exists for agricultural products); and
- the opportunity for registrants of a registered geographical indication to apply for a geographical trademark (a geographical indication is said to be in the public domain). The trademark which constitutes the geographical indication can be used by any enterprise which complies with the registrant's requirements.
For further information on this topic please contact Mathis Berger at Nater Dallafior Rechtsanwälte by telephone (+41 44 250 45 45) or email ([email protected]). The Nater Dallafior Rechtsanwälte website can be accessed at www.naterdallafior.ch.