Proposals to protect 'Swissness' issued

As part of the 'Swissness' legislation project, the Swiss Institute of Intellectual Property has issued proposals to:

• help distinguish genuine Swiss goods and services from fakes; and
  
  
• strengthen the protection of Swiss emblems and designations (eg, 'Switzerland', 'Swiss' and 'Federal Swiss Confederation').

Swiss quality and research, as well as the expressions 'made in Switzerland' or 'assembled in Switzerland', have become valued characteristics for goods and services. Many producers and traders highlight the fact that they are domiciled in Switzerland, even if their goods or services originate from other countries. Others use white crosses on a red background on packaging and in advertisements in order to create the impression that their goods or services originate from Switzerland.

Under the proposals, professional associations of traders or producers will be able to register geographical indications as collective or certification marks and benefit from international protection under the Madrid Agreement or the Madrid Protocol. Until now, geographical indications were considered to be generic and could not be registered.

Moreover, the proposals clarify what can be labelled as 'Swiss'. In order for goods to be described as 'Swiss', at least 60% of the production costs (excluding the costs of marketing, distribution and after-sales services) must have been incurred in Switzerland. Furthermore, primary agricultural products must have been grown in Switzerland. Processed agricultural and industrial goods must have been given their essential qualities in Switzerland and at least one stage of the production process must have taken place in the country. The new '60% rule' (including research and development costs) will replace the '50% rule'. Services may be described as 'Swiss' if the persons providing or controlling the services reside in Switzerland.

The proposals also deal with armorial bearings, flags, national designations and other state emblems. Previously, it was expressly forbidden to use the Swiss cross on goods or packaging in order to indicate that the goods were of Swiss origin. However, this prohibition was violated on a regular basis. Under the proposals, only the Swiss coat of arms (escutcheon) will be reserved for the Swiss authorities. Private parties will be allowed to use the Swiss flag and other state emblems (such as the famous Matterhorn mountain or William Tell) provided that their goods or services meet the aforementioned requirements.

The proposals have been published for consultation. Political parties, professionals and trade associations have been invited to comment on them. The Federal Department of Justice and Police will then submit the final proposals to Parliament, which is expected to adopt them next year.

Lucas M David, Walder Wyss & Partners, Zurich