Frequently asked questions – Swissness (old legislation)

The criteria for using the Swiss cross or a "Made in Switzerland" designation (designations of Swiss origin) differ depending on whether it is for products or services.The FAQs are to clarify the distinction between goods and services in the situations where it is necessary to do so.
Note: All documents are provided in German only.

 

Unless otherwise specified, FAQs 1 to 5 concern the official coats of arms of the Confederation and the cantons, the flags representing these coats of arms, the Swiss cross, the characteristic elements of the coats of arms and all signs that can be confused with them. The term "Swiss Cross" is used as a general term for matters of simplification.

  

A. The current situation: Criteria for using the Swiss cross

Unless otherwise specified, FAQs 1 to 5 concern the official coats of arms of the Confederation and the cantons, the flags representing these coats of arms, the Swiss cross, the characteristic elements of the coats of arms and all signs that can be confused with them. The term "Swiss Cross" is used as a general term for matters of simplification.

  
  

No.
The law does not contain provisions for obtaining approval. In principle, the Swiss cross may be used freely on condition that such use conforms to Swiss law (see following questions).This is why neither the Swiss Federal Institute of Intellectual Property, nor any other federal agency or office have the competence to approve use of the Swiss cross (or other claim of origin).
See also questions 10 - 13.

  
  

Principally, no.
The Federal Act on the Protection of Coats of Arms and other Public Signs expressly prohibits affixing the Swiss cross onto products or their packaging for commercial purposes. In absolute terms, this prohibition covers all products originating in Switzerland as well as those manufactured abroad (see Question 3). Affixing the Swiss cross on food products is illegal, even if the products really do originate in Switzerland.

  
  

Yes.
Since the Swiss cross is being used for decorative purposes and not with commercial intent (i.e. primarily to indicate the origin of source for products), its use is legal, even if the products have been manufactured abroad. Such decorative use is permitted, for example, on glasses, spoons, postcards, and other souvenir articles. This type of use is legal because consumers do not perceive it as an indication of source but rather simply as a decorative element.

  
  

Yes.
The Swiss cross can be used for services and publicity; that means it can appear on logos, announcements, brochures and commercial flyers as long as its use does not violate public morality. Particularly unacceptable is when it creates false impressions concerning the geographic origin (see question 7), when the value or other qualities of the product or service, as well as the nationality of the company or the commercial situation of the person using it (i.e. pretending to have connections with the confederation).
Examples:
The Swiss cross may be used in a catalogue if the merchandise being offered is Swiss products. It may also be used in a logo or on the letterhead of a Swiss business. The name of a Swiss business may be affixed to products or their packaging but without the Swiss cross (see question 2).

  
  

Yes, but only as a service mark.
Because the Swiss cross is part of the public domain (i.e., it must stay available for anyone to use and may not be monopolized), it may not be the only element of a service mark meaning that it must be combined with at least one other element it such a way that the totality of the mark has a sufficiently distinct character. Furthermore, since the Swiss cross may not be used in a misleading way regarding the nationality of a business, a trademark incorporating the Swiss cross may be registered only for services originating in Switzerland.

Example:

In contrast, a trademark incorporating the Swiss cross for products may not be registered. The Confederation and its businesses are not included in this restriction.

  

B. Current situation: Conditions for using a "Made in Switzerland" designation

  
  

A "Made in Switzerland" designation is an indication of source. That is to say that it directly refers to the geographic origin of the products or services for which it is used (Art. 47 of the Trade Mark Protection Act).
Anyone in the world can use an indication of source in principle. However, it is illegal to use indirect indications of source where a possibility of confusion exists with another indirect indication of source (see question 7).
Additional conditions or restrictions might apply. There is a specific regulation for using the name "Swiss" for watches (Ordinance on the Use of "Swiss" for Watches).
See also question 8.

  
  

An indication of source is indirect when the actual origin of the product or service does not correspond to the one being referred to. Consequently, the name "Swiss" and other such references as "Swiss quality", "Made in Switzerland", "Swiss Made", or any other references containing the word "Swiss", including its equivalent in other languages, may only be used on products manufactured in Switzerland or for services originating in Switzerland.
A firm name, which is the name a business uses for commercial purposes, may contain a "Made in Switzerland" designation if its seat is in Switzerland.
Examples: Credit Suisse, Swiss Re.
Note: The Swiss business "ABC Suisse", for example, may use its name for its products (for example, to affix to the products or packaging) only if they are manufactured in Switzerland, or for services only if they originate in Switzerland.
See also question 22.

  
  

In conformity with Article 48 of the Trade Mark Protection Act, the origin of a product is determined by the place where it is manufactured or the origin of the basic materials and components used. The Federal Council may define the conditions under which a Swiss indication of source may be used for certain products if it is in the best interests of the Swiss economy or particular sectors. This was done in the case of the Ordinance on the Use of "Swiss" for Watches which defines the Swiss watch.
For other products where more specific regulations do not exist, courts may apply Article 48 of the Trade Mark Protection Act. Thus, according to a decision by the St. Gallen Commercial Court, for every indication referring to Switzerland as the place of origin, at least 50% of the manufacturing costs (included herein are basic materials, semi-finished products, accessories, product-related wages and manufacturing overheads excluding distribution costs) as well as the essential manufacturing process must have taken place in Switzerland. According to this case-law, neither research and development nor marketing can be taken into account in determining whether both these conditions are met.

 

If the designation is for services, it is determined by the registered office of the person providing the services, the nationality, or the domicile of the persons who actually control the commercial policy and management.
See also question 15 and question 18.

  
  

Because such designations belong to the public domain (that means that they must stay available for anyone to use and may not be monopolized), it may not be the only element of a mark meaning that it must be combined with at least one other element (for example, a graphic one) such that the totality of the mark has a sufficiently distinct character.
In order to be registered, a trademark incorporating an indication of source may not be in any way misleading. Consequently, the trademark is registered only for products or services actually originating in Switzerland.

  

C. Scope of competence of the authorities

  
  

The cantons are responsible for prosecuting and judging legal infringements. Illegal uses of the Swiss cross can be prosecuted ex officio by the cantonal authorities with penal sanctions.
Any citizen can file a complaint with the responsible authorities as well.
Anyone who intentionally sells, makes available for sale, or puts into circulation in some manner or transports through Switzerland objects with the Swiss cross affixed to them is liable and can be fined CHF 5,000 or more or be imprisoned two months or more. The illegal use of a "Made in Switzerland" designation is usually pursued when a complaint is filed. Plaintiffs are any persons who have the legal right to use this designation. Infractions are punishable by law with one year's imprisonment or more, or a fine of up to CHF 100,000.

  
  

In the case of illegal use of a "Made in Switzerland" designation, the injured party may file a designation in civil court.
They may also request that the Federal Customs Administration intervene. Any measures taken by the customs officials (withholding/seizure of goods) are provisional and must be backed up by a court hearing within a certain time period.

  
  

The protection of coats of arms and indications of source is part of the IPI's area of competence. As such, it provides information in a targeted way (except for legal proceedings, see question 10 and question 11, principally to the Swiss embassies abroad and the general director of the customs administration, but also to individuals who advise it of cases of potentially illegal use. In Switzerland, the IPI notifies the offender in writing of the illegal use and the possible consequences.
Example: A Swiss business is selling bicycle saddlebags manufactured in Asia with a label "Company X Swiss Made". After receiving written notification from the IPI, Company X stops using the misleading label.
Abroad, interventions can be undertaken with collaboration by the Swiss embassies. In this way the IPI can draw the attention of the parties involved to the illegal act and inform the trade associations concerned who then can decide what action to take. In the majority of cases, once the offenders have received an official warning, they stop the illegal usage of the Swiss cross or a "Made in Switzerland" designation.
Example: An Italian company is selling a cosmetic product made in Italy which has a Swiss cross and a "Made in Switzerland" designation on the packaging. After the embassy intervenes, the company stops using the misleading designation and the Swiss cross.
On the subject of trademark registration, the IPI and the Swiss embassies monitor the registration of trademarks in certain countries (for example, in Argentina where the embassy, on the basis of a local madate, monitors the new trademark registrations and notifies the IPI if an illegal trademark is filed). If a trademark is filed which incorporates a Swiss cross or a "Made in Switzerland" designation, the IPI informs the trade associations (who then have the option of filing an opposition to the registration) and, in urgent cases of grave infringement, take any necessary steps.

  
  

The IPI is very active in this area but it cannot exceed its legal competence (see question 12).Thus, it may not declare sanctions against offenders nor make a decision in cases of litigation. It is up to the concerned individuals (natural persons or legal entitities) to participate in the fight against the illegal use of the Swiss cross and "Made in Switzerland" designations by resorting to the instruments provided by the law (see question 10 and question 11).

  

D. Current problems and issues

  
  

No. Only the watch sector has specific regulations provided for in the Ordinance on the Use of "Swiss" for Watches. This law was intensely debated in the watch sector because the various companies involved had very different ideas about the criteria for determining whether a watch could be considered Swiss made (see question 19) link. For other sectors, the general regulations provided in the Trade Mark Protection Act apply (see question 15).

  
  

Article 48 of the Trade Mark Protection Act refers to the place of manufacturing. The term "manufacture" is key to the interpretation. Unfortunately, no federal jurisprudence has yet defined this point. The few court decisions available are at the cantonal level and cover products with relatively simple manufacturing processes.
The interpretation of Article 48 of the Trade Mark Protection Act is a tricky question, particularly in the context of products involving lengthy and complex manufacturing processes (for example: technological products). In fact, it is debatable whether the cost of research and development can be considered part of the production costs and/or as an essential step in the manufacturing process. Furthermore, it is undecided whether this question applies to all products or only certain ones.
See also question 8.

  
  

The first restriction is a legal one: Swiss law may not be applied in other countries. The national law of the country concerned must apply, and eventually be supplemented with international treaties ratified by the country. Frequently the contents of the national law in a country is clearly different from Swiss law on this point. Moreover, the interpretation of international treaties and jurisprudence concerning these questions are hardly known or are imprecise.
The second limitation is related to available resources: legal procedures are expensive, long, and have uncertain outcomes. Today, the Swiss Federal Institute of Intellectual Property notifies the industry associations of cases of illegal use (for example: "Chocosuisse" for chocolate, "Swisscos" for cosmetic products). These can then decide whether to intervene or not.

  

E. Political and legislative aspects

  
  

The current situation is no longer satisfactory for three main reasons:

  • The current legislation on the protection of coats of arms no longer meets the needs of today's economy; in effect, businesses producing Swiss products want to be able to use the Swiss cross to show their origin;
  • The current legislation on the protection of coats of arms is being disregarded more and more
  • The current legislation on indications of source does not sufficiently define the precise criteria for determining if a product is Swiss.

Two postulates were submitted in March 2006, one by Anita Fetz to the Council of States, the other by Jasmin Hutter to the National Council . Both are regarding this issue and are demanding better protection for "Made in Switzerland" designations and the Swiss cross. The two postulates, which were adopted by the Federal Council in June, have led to a report by the IPI, published on 15 November 2006. Its goal is to examine the current laws, interpretations, and applications which are pertinent for all sectors, and measures which can improve the protection of "Made in Switzerland" claims (designations and the Swiss cross).

  
  

  1. Article 50 of the Trade Mark Protection Act gives the Federal Council the authority to define the requirements for using Swiss indications of source for products or certain services (see question 14). link It is indicated that the Federal Council must hear trade associations and other economic interest groups on this issue (see question 20).
  2. By stipulating that the origin of a product is determined by the place of manufacturing or by the origin of the basic materials and components used (Art. 48, TmPA), the law defines the general framework which the Federal Council must use.
  3. The law also defines that the determining criteria is how the average Swiss consumer perceives the sign. The cantonal jurisprudence (St. Gallen) has just decided that the perception of consumers in relation to traditional products (e.g. pen-holders, scarves, etc.) and maintained that the manufacturing may be considered as "Made in Switzerland" under two (cumulative) conditions:

    1. The essential manufacturing steps take place in Switzerland, and
    2. At least 50% of the labor cost takes place in Switzerland.

    If the Federal Council regulates, it must determine what the consumer perception is for different products and services affected by the new regulation.

  
  
  1. The first obstacle is defining the perception of the average Swiss consumer (see question 18). For example, what expectations do consumers have for a cosmetic product bearing a "Swiss Made" label? Are they expecting that the product development, the combining of the ingredients, or the refining took place in Switzerland? Or all three?
  2. The second difficulty is the absence of consensus within the same branch, as the Ordinance on the Use of "Swiss" for Watches demonstrated (see question 20). In effect, the Federal Council could define the conditions for using an indication of source only if the interests involved could agree on common criteria for use.
  
  

Agreement in the economic interest groups on common criteria is a necessary condition for the Federal Council to be able to pass legislation (see question 18). Opinions are often diametrically opposed, and often within the same economic sector itself (for example, cosmetics). For example, the view point of large companies with international production is not the same as that of small and medium enterprises which manufacture exclusively in Switzerland.

  
  

If new legislation is passed, it will primarily concern more precise regulations for defining situations and creating more transparency and legal certainty. It will not automatically create more severe regulations.

  
  

Companies in which the manufacturing processes are not carried out 100% in Switzerland would not be able to use a "Made in Switzerland" designation for their products.The end effect would be that practically no one would be able to use such an indication except perhaps some niche producers.

  
  

Abolishing the Federal Act on the Protection of Coats of Arms and Other Public Insignia would make it possible to register a guarantee trademark incorporating the Swiss cross (also for merchandise). This solution assumes, however, that the private sector makes a big committment to defining the conditions for using such a mark (extension of the regulations). Otherwise the various conflicts of interest would demonstrate precisely that no consensus exists in the private sector (some parties want very strict standards, other prefer more flexible ones), and a guarantee mark would become the property of its partisians and adversaries.

  
  

The Hutter postulate 06.3056 (Protecting the Swiss Trademark) of 16 March 2006 mandates the Federal Council to give parliament the means to improve protection for "Made in Switzerland" designations and, in particular, to determine to what extent the respective laws and ordinances can be revised to do this. The Fetz postulate 06.3174 (Strengthening the "Made in Switzerland" Trademark) of 24 March 2006 mandates the Federal Council to examine and present measures, in particular legislative ones, which could be used to strengthen protection for the indication of source "Swiss". The Federal Council has accepted these two postulates and published a report (pdf) on 15 November 2006 in response. The Federal Council has notably proposed four measures for dealing with the issue of "Made in Switzerland" designations and the Swiss cross in a coherent manner. These four measures are:

  1. Create a legislative revision project to modify or repeal the law on the protection of coats of arms and to modify the laws on the protection of trademarks and on protecting the emblem and name of the Red Cross;
  2. Signal to the trade associations that the Federal Council is ready to take on the creation of one or more ordinances regulating the use of "made in Switzerland" designations for one or more specific economic branches; it is up to those involved to take the initiative and engage in internal discussions and draw up a successful agreement on the common criteria, or at least to define a clear common direction dealing with the contents of such criteria;
  3. Take adequate measures for strenthening the protection of "Made in Switzerland" designations and the Swiss cross in Switzerland; and
  4. Take adequate measures for strengthening the protection of "Made in Switzerland" designations and the Swiss cross abroad.
  
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