On 2 September 2015 the Swiss Federal Council passed a new Swissness-legislation to preserve the value of Switzerland as reference to the geographical origin of goods or services.
To that end various regulations have been revised or newly created to clarify in particular the criteria for the designation of goods and services as Swiss. The Swissness-legislation will enter into force on 1 January 2017. Goods which have been produced prior to this date in compliance with the current Swissness-legislation may, however, still be distributed until end of 2018. The use of the Swiss cross, the Swiss flag, the term “Swiss” or other reference to Switzerland as origin of the goods or services will remain optional and do not require any permit.
Currently, the Swiss cross/Swiss flag may only be used in connection with (Swiss) services but must not be applied on goods or packaging for commercial purposes. The new legislation provides for some liberalisation in the sense that it allows – provided the respective Swissness criteria are fulfilled – goods to be also designated with the Swiss cross/Swiss flag. However, the use of the national emblem, represented by a Swiss cross in a triangular shield, remains reserved to the Swiss authorities.
The designation with “Swiss” or another reference to Switzerland is an indication to the Swiss origin of the goods and services distributed under such designation. The application of incorrect declarations of origin is illegal (article 47 of the Swiss Trademark Act, TMA). According to the current article 48 TMA the origin of goods is determined by the place of production or the origin of the basic materials or the components used in their production. Under the new law, however, the are very specific requirements to be fulfilled for a product or service to be considered Swiss:
As far as natural products (e.g. plants, mineral water or meat) are concerned their Swiss origin is determined by their connection to Swiss soil, such as the place of extraction for mineral products or the place of harvest for crops. If the natural product undergoes essential processing, however, it is considered to be foodstuff or an industrial product (for instance wooden furniture vs. piece of wood).
For foodstuff two cumulative conditions must be fulfilled in order to be considered Swiss: At least 80% of the raw material weight or the ingredients it is composed of must derive from Switzerland and the processing that gives the product its essential characteristics must have taken place in Switzerland. For milk and milk products the Swiss requirement is increased to 100% of the weight of the milk of which it is composed. However, natural products and raw materials which do not exist or are not available in Switzerland in sufficient quantity may be excluded – at least in part – from the calculation. Hence, coffee or dark chocolate, which consist solely of imported natural products that are not available in Switzerland, may still be designated as “Swiss” provided they are completely processed or manufactured in Switzerland.
With regard to Industrial products the Swissness criteria require that at least 60% of the respective production costs, including costs associated with research and development, must have been generated in Switzerland. In addition, the activity that gives a product its essential characteristics must have taken place in Switzerland. In any case at least one essential production step must actually have been carried out in Switzerland. However, the new law provides again for various exceptions and simplifications, in particular with regard to raw materials and semi-finished products which are not available in Switzerland. Furthermore, if a product does not fulfil the requirements of Swiss origin as a whole, there is the option – subject to further conditions – to only refer to certain specific Swiss features of that product (e.g. "Designed in Switzerland" or "Swiss Research").
Services are considered as being Swiss if the provider’s headquarters are situated in Switzerland and the company is actually administered from Switzerland.
Finally, the Swiss Federal Institute of Intellectual Property may introduce a national registry of geographical indications for goods which are not of agricultural nature, as e.g. watches or mineral water. Furthermore, the new law provides for the possibility to register all designations of origin and geographical indications which are recorded in a register as well as all designations of wine or geographical indications protected according to cantonal law as so called geographical trademarks.
It is regularly expected from a natural product that it grows and is bred respectively at the declared location. However, the further processing of such products may be effected at different places. The place of such processing may only be declared as point of origin, if the (end) product receives its characteristic properties through the processing. This is the case for example for Swiss chocolate, where the cocoa regularly derives from South America or Africa and the processing to chocolate is professionally done in Switzerland.
The place of production or the origin of the used raw material and components respectively define the origin of industrial products. For the geographical declarations it is decisive, where both, the essential part of the production costs accrue and the product in question passes through the most important production steps. In addition the essential components and the production processes, which give the product its characteristic criteria, should be Swiss. A fountain pen, from which only the golden pen was made in Switzerland and all the other parts are from abroad, may not be declared as Swiss product (Decision from the Commercial Court of St. Gall, in: St. Gallische Gerichts- und Verwaltungspraxis 1968, Nr. 17). Please also note the special rules in connection with watches, which may be found in the "Ordinance over the Use of the Swiss Name for Watches" (SR 232.119). You will find the summary of a current decision in this matter in our News area (Unfair use of the designation "Switzerland") or as full text version (in German only: Decision of the Swiss Federal Court 4C.361 dated 22 February 2006).
For services the domicile of the person providing such service (single service) or the domicile of the company, who has the factual control over the business policy and management (mass services) determine the origin of such services.
The question, if a mark using a declaration of origin may be protected under trademark law, has to be distinguished from the question concerning the general legitimacy of the use of declarations of origin. Not every mark is prohibited, which is not registered due to certain reasons and therefore receives no protection under trademark law against its use by third parties. The Swiss legal system on trademarks establishes the principle, according to which the use of declarations of origin is prohibited, if such declarations are incorrect. The Federal Law on Unfair Competition rules that is against the law, i.e. unfair, to make incorrect or misleading declarations about goods, works or services. Furthermore the Federal Law on Foods rules that the advertised quality or consistence as well as all other declarations concerning a food must be true and not in any way deceptive.
You will find the summary of a current decision in this matter in our News area (Unfair use of the designation "Switzerland") or as full text version (in German only: Decision of the Swiss Federal Court 4C.361 dated 22 February 2006).
A first issue arises from the question how far designations like "Swiss" and "Switzerland" may be used in trademarks, which as such constitute defense rights against third parties. The Swiss Trademark Law excludes marks from protection which may mislead in business, including also false and deceptive designations about the geographical origin.
However, should the consumers, because of the information gathererd from the mark, expect that the product originates from a certain country or geographical area, it suffices for the elimination of the deception (according to the code of practice of the office), to formulate the Lists of Goods and Services in a way that only a product from the according area is meant.
Conceptually it is important to distinguish between direct declarations of origin, i.e. the exact appellations of the geographical origin (SWISS, Appenzeller, ALASKA etc.), and indirect declarations of origin, which do not explicitly but by using figurative symbols indicate a certain region of origin (crossbow, edelweiss, alpenhorn, the Eiffel Tower etc.).
Taking the above said into consideration, a mark only then constitutes a declaration of origin, if it is understood as reference to a certain origin for the products labelled with such mark:
„Berliner“, „Wienerli“ or „Hamburger“ are, depending on the context, usually not understood as declarations of origin, but instead are used as simple names for certain categories of food. If somebody distributes woolen hats under the mark „Lauberhorn“, nobody expects thats said hats are produced in Wengen. Especially souvenirs do not symbolize the origin of the product as figure or mark, but intend to keep in mind the place where they were purchased.
In the area of conflict between trademark law, declaration of origin, protection of national emblems, unfair competition law, food and customs law, the question arises, if and under which conditions the use of the denomination „Swiss Made“ or other elements indicating the origin of products is permitted. These topics are currently being discussed under the slogan „Swissness“. The following websites shall allow for an orientation on the legal framework in Switzerland for the use of „Swiss Made“, „Swiss Quality“ and „Made in Switzerland“.
The complete Swiss legal practice in the field of domainnames can be found in the list below.
"hotmail.ch", Court of Appeal of Basel Landschaft, 21 June 1999 (sic! 2000, 26)
"artprotect.ch", Court VII Bern-Laupen, 15 March 1999 (sic! 2000, 24)
"rytz.ch", Swiss Federal Court, 11 February 1999 (BGE 125 III 91)
"berneroberland.ch": Swiss Federal Court, 2 May 2000 (BGE 126 III 239)
"barcodedrucker.ch": Court of Hinwil, 23 August 2000 (sic!2001, S. 212)
"frick.ch": Court of Commerce of the Canton of Aargau , 30 August 2001 (sic!2001, S. 818)
"cofideco.ch": Court of Lausanne, 23 July 2001 (sic. 2002!S. 55)
"amazon.de": Swiss Court of Appeal for Intellectual Property, 17 January 2002 (sic. 2002, S. 351)
"montana.ch": Swiss Federal Court, 23 July 2002 (BGE 128 III 353)
"luzern.ch": Swiss Federal Court, 23 July 2002 (BGE 128 II 401)
"breco.ch": Court of Commerce of the Canton of St. Gallen, 25 June 2002 (sic!2003, S. 348)
"djbobo.ch": Swiss Federal Court, 7 November 2002 (sic 2003, S. 438)
"integra.ch": Swiss Federal Court, 1 May 2003 (4.C.31/2003)
"tonline.ch": Swiss Federal Court, 19 May 2003 (sic 2003, S. 822-825)
"bundesgericht.ch": Swiss Federal Court, 2 September 2003 (sic!2004, S. 109ff)
"kicklernstudion.ch" / "lernstudio.ch": Swiss Federl Court, 5 May 2004
"riesen.ch": Swiss Federal Court, 8 November 2004 (4.C.31/2004)
"maggi.ch": Swiss Federal Court, 21 January 2005 (4.C.376/2004)
"info-tax.ch": Court of Basel-Stadt, 10 March 2005
The dispute resolution proceedings for Top Level Domains ".ch" and ".li"are divided into the conciliation attempt and the expert's decision. During a telephone conference, the third party, the holder and a conciliator try to find a dispute resolution. If no agreement can be found, the third party may request an expert's decision under the condition that the Top Level Domain Name has been registered or renewed after March 1, 2004. SWITCH will implement the expert's decision after a 20-day deadline has expired insofar as the holder has not instituted civil proceedings against the third party. The parties may claim an infringement of the Swiss rights in distinctive signs, including the Swiss Unfair Competition Act. The Decisions will be published by WIPO .
Domain Names may be filed as trademarks in accordance with the usual rules and principles of trademark examination. Like any other symbol, a Domain Name may only be protected as a trademark if, overall, there is the requisite degree of identification with the claimed goods and services. Top level Domain Names (TLDs) such as .com, .org, .net or .ch are not considered distinctive and are thus not protectable. Combinations of a word from common usage and a TLD are also not protectable.
The Swiss Federal Institute of Intellectual Property is not responsible for allocating Internet Domain Names. Applications for domain names under the generic Top Level Domain names (TLDs) .com, .net and .org may be filed with one of the authorised registration offices of Internet Corporation for Assigned Names and Numbers (ICANN). Allocation of names under the TLDs with country codes (e.g. .ch, .de, .fr, .at) is in the responsibility of the respective national organisations. In November 2000, the Internet Corporation for Assigned Names and Numbers (ICANN) voted to create seven new TLDs. They are: .aero, .biz, .coop, .info, .museum, .name and .pro. The TLDs .biz, .info, .name and .pro can be accredited to anyone. The TLDs .aero, .coop and .museum are reserved for specific users.
The registration office of the Foundation SWITCH (CH/LI DOM-REG) registers domain names for the country codes .ch (Switzerland) and .li (Principality of Liechtenstein) and provides proceedings for dispute resolution in cooperation with the WIPO.
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