The Swiss Parliament has resolved to better protect the “Made in Switzerland” designation for products and has therefore adopted on 21 June 2013 a new law on the protection of trademarks and indications of source (nLPM, RS 232.11); this new law, nicknamed “Swissness” act, has still to be completed with implementation ordinances, and the date of its entry into force has also to be confirmed. Its content is however final and is seen as a major improvement to protect Swiss made products, not only in the retail or watch industry, but also in the Swiss food industry.
“Made in Switzerland” designations are considered as indications of source which may be freely used as long as they are appropriate or not confusing. The Swissness act aims at preserving the value of the brand “Switzerland” for the long term and defines new criteria for the protection of trademarks and indications of source, i.e. how much “Switzerland” has to be in a product before it can claim to originate from Switzerland.
In the new law, goods are divided into three categories, namely natural products, processed natural products and industrial products; a fourth category relates to services.
Origin of natural products
For natural products, such as plants, mineral water or animals, the determining criterion depends upon the nature of the product. The new law has adopted the following solutions; the origin of a natural product corresponds to:
- the place of extraction for mineral products;
- the place of harvest for vegetable products;
- the place where cattle has spent the major part of its life, for meat;
- the place of hunting or fishing, for products deriving from such activities.
As a result, if the places as reflected above are in Switzerland, the producer is entitled to refer to a Swiss origin for such products.
Origin of processed natural products
For processed natural products, the origin is determent by two cumulative conditions:
- at least 80 % of the raw material weight or ingredients that make the product must come from Switzerland, and
- the activity that gives the product its essential characteristics must take place in Switzerland (for example, the processing of milk into cheese).
The 80 % criterion has been highly debated; for industrial products, it has been resolved that at least 60 % of the product’s manufacturing costs must be incurred in Switzerland for the products to be considered as made in Switzerland; it has been considered that the 60 % criterion applicable to industrial products was not sufficient with respect to processed natural products and a 80 % criterion has been finally adopted (and a 100 % requirement has been imposed for milk products).
The new law however provides exceptions to this 80 % criterion in order to take into account the material, structural or accidental constraints that may have an influence on the procurement of raw materials by the processing industry. Therefore, natural products that do not exist in Switzerland (for example, cocoa or gold) or which, for reasons completely independent from the producers, are temporarily unavailable (for example, because of bad harvests resulting from bad weather conditions or a livestock epidemic) can be excluded from this calculation. An additional exception also allows the exclusion of raw materials from the above calculation in case an insufficient availability in Switzerland has been clearly established in an ordinance applicable to the concerned activity.
The illegal use of an indication of source may constitute an offence and is prosecuted ex officio by the cantonal authorities. The competence of the Swiss Federal Institute of Intellectual Property to file a claim on behalf of the Swiss Confederation is now specifically set out in the new law. Third parties are equally entitled to file a criminal claim in case of breach and sanctions may reach a maximum of five years jail sentence. Under a civil respective, all persons who have the right to use the indication of source in a legitimate way can bring a civil claim against the offender. Professional associations as well as consumer protection associations can also file a civil claim.
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