Ladies and Gentlemen
1. The significance of "Switzerland" as a trademark
The future of the trademark "Switzerland" is not only of direct concern to the members of Swiss Label, but should also be a concern to all of us as Swiss people.
This is not about the term "Switzerland" in the sense of a trademark that refers to corporate provenance. This is about geographical origin, it’s about identity.
The public perceives the trademark "Switzerland" in the form of the Swiss Cross, as well as in designations such as "Swiss", "made in Switzerland" or "Swiss made". Pictures and imagery typically associated with Switzerland, such as the Matterhorn or William Tell, are also part of this perception. The concept of "Swissness" automatically conjures up positive attributes such as quality, precision and reliability. This association has developed over decades through the labours of our ancestors to produce quality goods. It is, then, no surprise that manufacturers are increasingly using − or misusing − the Swiss Cross and terms such as "Swiss made" as a marketing tool. This has led to a growing realisation that this valuable asset needs to be carefully preserved and defended. Perhaps we should take a look at some of the reasons why.
2. Protection today
Let us first consider the Swiss Cross. The Swiss Cross is emblazoned on products as varied as yoghurt cartons, pliers and vitamin tablets. However, using the Swiss Cross for commercial purposes in that way is illegal under the Coat-of-Arms Protection Act, which bans the use of the Swiss Cross on products as a designation of origin. Its use is only admissible for purely decorative purposes. An obvious example of this would be the display of the Swiss Cross on a UEFA EURO 2008 T-shirt. A less obvious example would be the use of the emblem on a Swiss pocket knife.
In contrast, business enterprises are permitted to use the Swiss Cross to designate the provision of a Swiss service; an example being Swiss Life.
The Trademark Protection Act lays down only very general requirements for the use of the designation "Switzerland"; the provenance of a product is determined by the place of manufacture or by the origin of the basic materials and components. The Federal Council may lay down the requirements in more concrete terms if the general interest of the economy or individual economic branches justifies doing so. Up to date, this has only occurred once and then only after a long debate on the highly controversial interests of the watch-making industry; in the case of the use of the designation "Swiss made" in the 1971 decree on watches. Apart from this one decree, the remaining dispensation of justice in this field is rather sketchy; the Swiss value percentage of the manufacturing costs must account for at least 50 percent, and the essential part of the production process must take place in Switzerland. Law enforcement lies in the jurisdiction of the cantons who are obliged to intervene in cases of violation against the Coat-of-Arms Protection Act. Moreover, any person may report a violation to the authorities. Injured parties (typically Swiss manufacturers), trade associations and consumer protection groups may take civil or criminal action, whilst the misuse of the trademark "Switzerland" for commercial purposes must be prosecuted ex officio by the cantons. However, despite existing legislation, violations are seldom prosecuted in Switzerland.
Still unsettled is the question of whether in determining Swiss provenance research costs may be included in calculating manufacturing costs. This is a current topic, since well-known Swiss enterprises such as Juvena, Mövenpick or Raichle all use the designation "Swiss" despite the fact that these enterprises have shifted production for the greater part abroad. However, even abroad violations are rarely prosecuted because proceedings are bound up with too grave risks.
3. The situation at present
Last year, the ineffective implementation of legislation to protect the Swiss mark of origin was the object of various parliamentary procedural requests to the Federal Council. In answer to the issues raised in the postulates, the Federal Council last November published a report on the protection of "Switzerland" and the Swiss Cross as a designation of origin. In its report, the Federal Council examined the current situation and proposed four concrete measures to ensure a more resolute protection of the trademark:
- An amendment of current legislation to create more transparency. The Swiss Cross should in future be permitted on Swiss products. Criteria for the use of the designation "Switzerland" should be better defined.
- The Federal Council should communicate to trade associations its willingness to draft one or more decrees to regulate the use of the designation "Switzerland" for certain sectors of the economy if there is appropriate interest and a clear initiative to do so.
- "Switzerland" and the Swiss Cross should be afforded better protection in Switzerland as a designation of origin. The Federal Institute of Intellectual Property should be empowered not only to issue warnings in case of misuse, but also to report such cases to the law enforcement authorities.
- The protection of the trademark abroad should be strengthened as much as possible and as far as is practical. In cases of misuse, the Institute should be allowed to intervene either on its own or with the support of the appropriate trade associations.
At present, the Federal Institute of Intellectual Property is working at full speed on the proposed amendments to the legislation.
4. Future tasks
Irrespective of whether stricter or more liberal regulations are ultimately imposed: the trademark "Switzerland" only truly has a future if economic players are prepared to accept clear regulations that are carried jointly by manufacturers and consumers. This also means making full use of the legal instruments available. Moreover, it is essential that the distinctive features and the prestige of the designation "Switzerland" and the Swiss Cross be cultivated and developed further both in Switzerland and abroad.
Parliament intends to debate the Federal Council report in its summer session. The Federal Council is expected to decide by the end of the year on holding consultations with a view to drafting legislation. Should serious differences of opinion arise on important points, the Federal Council will decide in the first half of 2008 on the further procedure. Otherwise, the Federal Council will compile a report explaining the amendments to the Trademark and Coat-of-Arms Protection Act.
It is up to you to decide whether, under the signet of the crossbow, you want to take the course of positioning "Swiss plus" as a sign of quality and set down stricter regulations concerning the definition of Swiss provenance.
It remains for me to wish you good luck in this creative debate.
Last modification 19.06.2007