Swissness™
What’s going to change as of January 2017?
— 01
What is at stake?
Switzerland is associated with a variety of attributes: Quality, precision, reliability, tradition, neutrality, stability, genuineness, …
Therefore, Swiss products enjoy an excellent reputation both at home and abroad. And this reputation is worth one’s salt: vendors can market their Swiss products at a premium. But higher margins attract freeloaders. The reputation of the «brand Switzerland» suffers when consumers make bad experiences with inferior products and associate them with Switzerland.
The new Swissness regulations become effective on January 01, 2017. The aim is to preserve the reputation of the «brand Switzerland».
Everyone can benefit from the Swissness value through the use of the Swiss cross or the indication «Switzerland» without elaborate approval procedures. The only prerequisite is that the legal requirements are met.
That’s not trivial – but easier than you might think.
“The good reputation of Switzerland as a brand needs to be maintained.”
— 02
Natural products
For a natural product to be advertised as Swiss, the origin is decisive. The origin is
→ the place of harvest (for crop production);
→ the place of collection (for mineral products);
→ the place where the animals have spent most of their lives (for meat);
→ the place of keeping of animals (other animal derived products);
→ the place of hunting or fishing;
→ the place of rearing farmed fish.
“The origin of natural products is decisive.”
— 03
Foodstuffs
In general terms, at least 80 percent of the weight of the raw materials available in Switzerland must originate from Switzerland. For milk and dairy constituents even 100 percent are required.
There are several things to consider in detail. The decisive factor is, among other things, the level of self-sufficiency in Switzerland regarding the respective raw materials:
→ In case of a self-sufficiency rate of over 50 percent the raw material is fully accounted for;
→ in case of a self-sufficiency rate of 20 – 50 percent it is accounted for by half;
→ in case of a self-sufficiency rate of less than 20 percent it can be neglected.
Minor constituents in terms of weight may be disregarded.
Additionally, the processing stage which gives the product its essential characteristics must take place in Switzerland (e.g. the processing of milk into cheese).
As an exception it is possible to point to a single Swiss raw material if the foodstuff has been produced entirely in Switzerland and the raw material is significant for the food in terms of weight as well as either eponymous or characteristic (e.g. lasagna with Swiss beef). However, the use of the Swiss cross is not permitted in this case! For the consumers it must be clear that «Switzerland» only refers to the individual raw material and not to the whole foodstuff. This indication must therfore not be written larger than the product name.
“Foodstuffs: 80% of the weight of the raw materials; 100% of milk and dairy constituents.”
— 04
Other products, e.g. industrial products
For any other product to be identified as Swiss, at least 60 percent of the manufacturing costs have to be incurred in Switzerland. These include costs of production, costs of research and development, material costs and costs relating to statutory or uniformly governed quality assurance and certification.
As in the case of foodstuffs, the activity that has given the product its essential characteristic, must have taken place in Switzerland. In any case, at least one significant manufacturing step has to take place in Switzerland.
Excluded from the calculation is:
→ costs of natural products, which can not be produced in Switzerland due to natural limitations (e.g. coffe, cocoa, etc.);
→ costs of materials objectively not available in Switzerland in sufficient quantities such as precious metals, steel, mineral oils. Costs are only excluded to the extent of the insufficient availability;
→ packaging and transportation costs;
→ distribution costs, particularly marketing costs and customer service costs.
“In industrial products: 60% of the manufacturing costs.”
— 05
Services
Until now it has been sufficient, if either the place of business was located in Switzerland or if persons with Swiss nationality or residence exercised effective control over the commercial policy and management. As a result, there were many letterbox companies that could boast the «brand Switzerland».
This is put to an end: Companies now have to have place of business in Switzerland and have to be actually managed from Switzerland.
“A shell company is no longer enough.“
— 06
Awarding of specific activities
Even if the high Swissness requirements for the ‘Origin Switzerland’ are not met for a product, activities conducted in Switzerland can on under certain conditions be awarded (such as ‘Swiss Research’ or ‘Designed in Switzerland’) This is only permitted if the highlighted activity has taken place completely in Switzerland. Moreover, the term ‘Switzerland’ must not be shown more visible than the rest of the specification in terms of color, size and type of font.
The use of the Swiss cross is in any case inadmissible in awarding of specific activities. Additionally, too general and therefore misleading information regarding the activity such as ‘made in Switzerland’ is prohibited.
“The awarded activity must entirely take place in Switzerland.”
— 07
New Register and geographic mark
There is already a Register for designations of origin (PDO) and protected geographical indications (PGI) of agricultural products in a broader sense, whose quality and main characteristics are determined by their geographical origin (e.g. ‘St.Galler Bratwurst‘ or ‘Gruyère‘ for cheese). Into this existing register information regarding forest products and processed forest products is added in the future. However, wines currently are and will remain excluded from this existing register; they enjoy cantonal protection.
Now, a new a register is established for non-agricultural products. This register will especially concern craft products such as textiles (such as ’St. Galler lace’) and ceramics, as well as industrial products such as watches and products which are obtained by extraction (minerals, salt).
All designations of origin and geographical indications registered in a federal register, the wine denominations protected in a cantonal register and the indications that are regulated in a Federal Council ordinance (e.g. the trade ordinance on watches), can be registered as a trademark. For example, a trade association is entitled to file a trademark application. The requirements for using the trademark are specified in regulations by the trade association.
“Finally, a register for non-agricultural products.“
— 08
Cancellation proceedings for unused trademarks
Unused registered trademarks cause legal uncertainty for third parties. So far cancellation had to be enforced by way of a court action, which under certain circumstances lasted long and was costly. Now, there will be an additional simplified procedure at the IPI (Swiss Federal Institute of Intellectual Property), in which third parties can apply for cancellation of an unused trademark. This is possible whenever the holder has not used the mark for some or all of the registered goods or services for an uninterrupted period of five years and cannot provide any important reasons for this.
In obvious cases of non-use of a trademark this cancellation process will help to gain legal certainty quickly and cost-efficiently .
“Quick and cost-efficient legal certainty in case of evidently unused trademarks.“
Got it?
Answers to typical questions about Swissness.
Straight to the point.
Who enforces the new rules, and how?
Deceptive designation of origin can be prosecuted according to civil and criminal law.
Each person, who is allowed to use the designation of origin itself, may in case of deceptive use of the designation of origin by a third party:
→ file charges at the cantonal criminal law enforcement authorities, or show the unlawful use of the Swiss cross to the cantonal law enforcement authorities;
→ bring an action before a civil court;
→ apply for intervention of the customs authorities in case of suspicion of an imminent import or export of unlawfully marked products regarding designation of origin; the initiation of an ordinary procedure before a court must then follow.
In addition, the IPI now also can file charges or bring a civil action.
Are there still transitional rules?
Yes.
For industrial products there is a grace period of 2 years, in case they were produced before 01. January 2017 and complied with the previous rules.
For foodstuff there is a similar grace period until the best before date, but no longer than 2 years.
What exactly is the difference between (edible) natural product and foodstuff?
When a natural product undergoes a substantial processing, it is considered being foodstuff. Vegetables and fruits are undoubtedly natural products, as well as honey. However, food sweetened with honey constitutes foodstuff.
Do I have to account for papaya as raw material? They are not growing here!
No.
Natural products, which cannot be produced in Switzerland due to natural limitations, are not considered (e.g. certain tropical fruits, coffee, cocoa, etc.).
My raw material from Switzerland is temporarily unavailable due to a crop failure. Do I still have to account for this?
No.
Natural products, which are temporarily unavailable due to crop failure do not have to be accounted for. This applies only for the period which is affected by the crop failure.
It is not possible to produce my natural product raw material in Switzerland in a way that it meets the technical requirements. Do I still account for this raw material?
Not necessarily.
Natural products that can be produced in Switzerland, but which do not meet the technical requirements for a specific use, can be excluded from the calculation on request. Such requests may be submitted by organizations of the agricultural and food industries, which are representative of the natural product or foods produced from it. The request must in any event proof that
→ the natural products produced in Switzerland are not suitable for the production of the foodstuff; and
→ the foodstuff cannot be prepared differently.
I produce cheese from foreign milk in Switzerland. May I call it "Swiss cheese"?
No.
A cheese being produced in Switzerland from foreign milk may comprise the indication “produced in Switzerland” on its packaging, according to food law.The cheese must not use “Swiss cheese” as a trademark or in advertising.
My product is labelled ”Swiss origin” in accordance with customs legislation. Everything alright, isn't it?
No.
The origin of a product according to the Swissness regulation must not be confused with the origin of a product according to custom legislation. The latter is concerned only with the allocation of a specific tariff. The criteria are not the same.
According to food law I have to specify the production country Switzerland on the goods. But I do not meet the Swissness criteria. How to deal with this?
The Swissness rules concern voluntary indications for promotional purpose. Food law however requires mandatory indication of the country of production and the raw materials of a food on its label. It is crucial that this mandatory information is not used as a marketing tool. It is therefore recommended that the indication of the country of production in accordance with food law in principle is not displayed more prominently than any other compulsory information.
What exactly are these trade ordinances?
In case there is a need in a particular industry, specific criteria for use of the indication of origin Switzerland be regulated in detail in a trade ordinance. The Swiss Federal Council decides on the ordinance on the basis of a draft which is at least supported by a representative part of the companies in this sector. The trade ordinance may define for example which process step(s) provide(s) the essential characteristics to the product. A trade ordinance is also prerequisite for certain statutory exceptions (e.g. the collection of raw materials insufficiently available in Switzerland).
The details
Laws, regulations, explanations and tools
Swissness in general:
→ Dispatch of the Federal Council on the Swissness regulations
Trademarks:
→ Trademarks Protection Act, valid as of 01. January 2017
→ Ordinance on Trademarks Protection, valid as of 01. Januar 2017
→ Explanatory notes on the revision of the Ordinance on Trademarks Protection
Coats of Arms:
→ Coats of Arms Act, valid as of 01. Januar 2017
→ Ordinance on the Coats of Arms, valid as of 01. Januar 2017
→ Explanatory notes on the revision of the Ordinance on the Coats of Arms
Trade ordinances:
→ Trade ordinance for watches, valid as of 01. Januar 2017
→ Explanatory notes on the trade ordinance for watches
→ Trade ordinance for cosmetics (Draft)
→ Explanatory notes on the draft of the trade ordinance for cosmetics
Designations of origin for foodstuffs:
→ Ordinance on designations of origin for foodstuffs, valid as of 01. January 2017
→ Explanatory notes on the ordinance on designations of origin for foodstuffs
→ Manual for requests of exception
→ Calculation tool (Excel), provided by the Federal Office for Agriculture FOAG
Designations of origin and geographical indications:
→ Ordinance on the Register for designations of origin and geograpical indications for non-agricultural products, valid as of 01. January 2017
→ Explanatory notes for the Ordinance on the Register for designations of origin and geographical indications for non-agricultural products
Anything else?
We are here to help!
Hepp Wenger Ryffel AG
Friedtalweg 5
CH-9500 Wil
+41 (0)71 913 9555
mail@hepp.ch
All details on this website are provided for information purposes only and do not constitute legal advice by Hepp Wenger Ryffel AG. The use of the information provided does not give rise to an attorney-client relationship.
The content has been carefully edited, but Hepp Wenger Ryffel AG cannot accept any liability for the completeness or accuracy of the content offered, or for its being up to date. Any liability for any losses which arise as a result of reliance on the content of this website is excluded.
The content of this website is protected by copyright. Any duplication or distribution for commercial purposes is prohibited.
November 2016 ¦ V1.0 /MW
All details on this website are provided for information purposes only and do not constitute legal advice by Hepp Wenger Ryffel AG. The use of the information provided does not give rise to an attorney-client relationship.
The content has been carefully edited, but Hepp Wenger Ryffel AG cannot accept any liability for the completeness or accuracy of the content offered, or for its being up to date. Any liability for any losses which arise as a result of reliance on the content of this website is excluded.
The content of this website is protected by copyright. Any duplication or distribution for commercial purposes is prohibited.
November 2016 ¦ V1.0 /MW