Legislative regulation of “Swissness“ starts
1 January 2017

The concept of indicating the “Swissness” of certain goods and services acquires legal foundation with the Federal Council, in September 2015, having passed a set of legislative measures, including a new law on the protection of the Swiss Coat of Arms and other National Emblems and amendments to the Trade Marks Act and passed by Parliament in 2013, to take effect from 1 January 2017. At the same time, a consultation on the regulation of the “Swiss Made” identifier for watches was initiated. In a separate development, “.swiss” top level internet domain name was launched to stand alongside the current “.ch” identifier for Switzerland.

According to the Institute for Intellectual Property, which is the registration authority for Swiss patents and trade marks, “Swiss products and services enjoy an excellent reputation both domestically and abroad, which is why Swiss indications of source are being used with increasing popularity. Unfortunately, they are also being used more frequently by free riders. The new 'Swissness' legislation strengthens protection for the 'Made in Switzerland' designation and the Swiss Cross. It helps prevent and curb their misuse, so that the value of the 'Swiss' brand can be preserved in the long term.“

Regulation of “Swissness” will take place in terms of a package of legislation, including new legislation on the protection of the Swiss Coat of Arms and Flag (replacing legislation dating back to 1889 and 1931) and amendments to the Trade Marks Act (SR 232.11). This legislation had already been passed by Parliament in 2013, following four years’ of deliberation. In addition, following a consultation in 2014, the Federal Council has adopted an amendment to the Trade Mark Ordinance and new Ordinances on the use of indications of Swiss origin on foodstuffs, the use of the Swiss Cross in respect of goods and services, and the establishment of a register of indications of origin for non-agricultural products. In order to facilitate transition to the new rules, the Federal Council has, in effect, given 15 months’ prior notice, in declaring that this legislation will come into force on 1 January 2017.

The 2013 amendments to the Trade Marks Act (BBl 2013, pp. 4795-4812) import new provisions dealing with geographic indications and indications of origin, which determine not only indications of Swiss origin, but of other origins as well. The new Act on the Protection of the Swiss Coat of Arms and other National Emblems legitimises the use of the Swiss Cross as an indicator of Swiss origin under the new provisions of the Trade Marks Act.

In order to claim an indication of Swiss origin for most industrial products, the general rule is that 60% of the cost of production must have incurred in Switzerland. A service can also have an indication of Swiss origin, if the place of business and the seat of management of the person providing the service is in Switzerland. There are many supplementary provisions to and embellishments of these rules, with special rules applying to the indication of the Swiss origin of foodstuffs, but all subject to an overriding consideration that Swiss consumers may not be misled.

Recognition will be given to the requirements of specific branches of industry. The Federation of the Swiss Watch Industry had made specific proposals relating to the indication of Swiss origin for watches, for which the Federal Council had published a draft ordinance for public comment by 2 December 2015.

In a separate development, the Federal Office of Communications (OFCOM) announced that it would accept applications for domain names with the ending “.swiss”. Until 9 November, OFCOM will only consider applications from public and private organisations for trade marks registered with the Internet Corporation for Assigned Names and Numbers (ICANN), names related to Swiss public authorities or for other distinctive signs, such as Swiss company names. After 11 January 2016, the application process will open to all public or private organisations with headquarters and a physical administrative presence in Switzerland. Following evaluation by OFCOM, requests will be published for 20 days to allow responses or competing applications to be submitted. OFCOM will begin announcing newly assigned domain names in December 2015.

André Myburgh