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Peter Schramm
After years of debate the Swiss parliament on 21 June 2013 passed the “Swissness” bill, which will introduce important changes to the use of Swiss geographical indications. The new rules apply for all signs and labels that refer to the Swiss origin of goods or services, and include terms such as “Switzerland”, “Made in Switzerland” and “Swiss” as well as the Swiss cross, pictures of Swiss natural monuments such as the Matterhorn, or the names of cantons or places in Switzerland. The new provisions are expected to enter into force in 2015. The use of foreign designations of origin in Switzerland will be subject to the law of the country of origin. The new legislation on Swiss geographical indications of source must not be confused with the provisions on rules of origin in the customs sector. The customs treatment of import and export goods has no immediate connection with the labelling provisions of the revised trademark act. The purpose and scope of the corresponding provisions are different.
For natural products (mineral products, plants, meat), several new criteria for the use of a Swiss indication of origin are defined (e.g. place of extraction for mineral products, place of harvest for plant products etc.). Food products may in future only use “Switzerland” as designation of origin if at least 80% of the raw material weight of the ingredients that make up the product come from Switzerland. For milk and milk products, even 100% of the weight of the milk as raw material must come from Switzerland. The processing that gives the product its essential characteristics must also take place in Switzerland. The Federal Council will have to regulate the distinction between natural products and food products in an ordinance. For other products, in particular industrial products, at least 60% of the manufacturing costs must be incurred in Switzerland. The manufacturing step that gives the product its essential characteristics must also take place in Switzerland. In any case, at least one significant stage of the manufacture of the product must occur in Switzerland if a product bears a Swiss designation of origin.
Certain exceptions apply to these calculations, both for food products and for industrial and commercial products. For industrial products, for example, the calculation does not include the packaging and transport costs, the costs for selling the goods, the marketing and customer service costs, or the costs for natural products that due to local conditions cannot be produced in Switzerland. The costs for raw materials can also be excluded from the calculation if these for objective reasons are not available in Switzerland in sufficient quantities and the Federal Council has issued a sector ordinance for the sector in question that regulates this issue. Such a sector ordinance must in particular list the conditions or objective reasons under which a raw material will be considered to be insufficiently available in Switzerland and the extent to which this fact must be included in the calculation.
Those wishing to benefit from such an exception when calculating the raw material costs will require a sector ordinance. Meyerlustenberger Lachenal has already helped a Swiss national association to draft such a sector ordinance and has valuable experience in this regard. We have also been advising a number of renowned companies on the “Swissness” issue for many years.
We would be happy to help you with any questions regarding the future use of Swiss designations of origin or the drafting of a sector ordinance.
The wording of the changes adopted on 21 June 2013 is available at the following link:
· Trademark Protection Act (amendment of 21 June 2013) (German Version)
