In September 2015 the Federal Council adopted the long-awaited regulations surrounding the 'Swissness' package. The legislation is intended to strengthen the Swiss brand and tighten the rules against misleading suggestions that a product is Swiss made. The new rules will enter into force on January 1 2017. There is no subsequent transition period for new products, but vendors will have up to two further years (until December 31 2018) to use existing stocks.
The Swissness package is split into five separate regulations:
- a revised trademark regulation;
- a regulation on the use of a Swiss designation of origin for foodstuffs;
- a regulation on the register for designations of origin and geographical designations for non-agricultural products;
- a regulation on the protection of the Swiss coat of arms and other official signs; and
- a Swiss-made regulation for watches.
The first four of these regulations have been adopted in their final form. The fifth regulation, concerning Swiss-made watches, is still in draft form and is subject to a consultation until December 2 2015. This regulation is expected to enter into force on January 1 2017.
Legal changes and producers
The regulations contain precise requirements that products and services must meet in order to be designated as Swiss. If the requirements are met, the Swiss designation may be used freely, with no need for a permit or application. The same applies to use of the Swiss cross, which in future may be used for products as well as services (currently, it may be used for services only). Use of the Swiss coat of arms, on the other hand, will remain reserved for public entities and official bodies.
Place of origin is key for foodstuffs. At least 80% of the raw ingredients must originate from Switzerland. For milk products, 100% of the milk must be from Switzerland. For processed foods, the steps which give the product its defining characteristics must occur in Switzerland. There are special provisions for foodstuffs which make use of ingredients that are unavailable in Switzerland or available only in insufficient quantities.
For non-foodstuffs, Swissness is measured based on production costs (ie, research and development costs, materials and manufacturing costs). At least 60% of these costs must be incurred in Switzerland. Costs that arise after manufacture (eg, marketing costs) are not taken into account. Special provisions address:
- elements of minor importance in the manufacturing process;
- products that make use of one or more half-finished products in the manufacturing process; and
- products that make use of materials not readily available in Switzerland.
For watches, it has been proposed that existing legislation on the use of the Swiss designation be amended so that at least 60% of the costs of the end product – not just the watch workings – must be incurred in Switzerland. Additionally, the technical development work must be carried out in Switzerland.
For services, the legal seat of the service provider must be in Switzerland. Additionally, to avoid abuse, the service provider must have an actual place of administration in Switzerland.
Geographical designation marks
The new rules provide for the possibility for representative groups of producers to register designations of origin and geographical designations for non-agricultural products (eg, 'Genève' for watches or 'St Gallen' for lace) in a new register of geographical marks. For foreign designations, applications may be made by groups of producers or the competent authority on behalf of the producers. The trademark registry (the Institute of Intellectual Property) will review the application and whether the various conditions has been fulfilled. Objections may then be filed by third parties within three months of publication, on the basis that:
- the conditions have not been fulfilled;
- the applicant is not representative; or
- the applied-for designation infringes existing trademark rights.
These changes are in line with recent developments in other jurisdictions (eg, the European Union) where changes are afoot to extend the protection under geographical indications to non-agricultural products. The changes in Switzerland will improve the protection of such designations within Switzerland. However, it remains to be seen whether and to what extent they will affect the enforceability of geographical designations outside Switzerland.
Cancellation based on non-use
Finally, the revised trademark regulation introduces a new procedure for applying to the trademark registry for the deletion from the register of marks that have not been used within the past five years. Previously, such actions for deletion could be brought only before the civil courts. The new administrative proceeding is expected to reduce the costs and time required to have unused marks removed from the register.
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