The draft legislation concerning protection of "Made in Switzerland" also contains an (unrelated) proposal for a cancellation action for non-use of a mark, to be filed with the Swiss IPO.

So far, a cancellation action for non-use has to be filed with a civil court, in ordinary proceedings. These are lengthy and expensive. The proposal seeks to institute a fast-track cancellation action to be filed with the Swiss IPO (Federal Institute for Intellectual Property). The claimant has to make credible ("glaubhaft machen") that the mark has not been used for the goods claimed within the last five years. The mark is cancelled unless the trade mark owner makes credible that the mark has been used or that he had good reasons for non-use. The standard of proof is therefore lower - on both sides - than in ordinary civil proceedings. Cancellation actions for other reasons, namely absolute grounds of refusal, still have to be filed with a competent civil court (if cancellation for non-use is sought, the claimant may choose whether to file with the IPO or with a competent civil court).

The date of the coming into effect of the proposed legislation is not yet known.

"Swiss made", "Made in Switzerland" and the Swiss cross are valuable brands - a study estimates that labelling a product "Swiss made" can add up to 20% to its price. Small wonder that everybody would like to call their products Swiss made - but not everybody likes to pay the price, because producing in Switzerland is expensive. The Federal government has now proposed to clarify the regulations on geographical indications and proposes the following rules, which must be met for a product to be legally labelled "Swiss made":

• For natural products, the criteria depends on the type of product. For plants, the place where the plant is harvested is essential, for meat, the place where the animal has lived the most part of its life;
• for processed natural products (most food stuffs), at least 80% of the ingredients in weight must originate from Switzerland. There are exceptions for raw materials that are not produced in Switzerland - think cacao, if 80% of the weight of a chocolate bar's ingredients had to come from Switzerland, there would be no Swiss chocolate;
• for industrial products: at least 60% of the manufacturing cost has to be incurred in Switzerland, research and development count as manufacturing cost. The total value of the good does not include the value of raw materials that cannot be found (in sufficient quantities) in Switzerland - think gold watch: the gold (which is not found in Switzerland) may constitue 80% of the watch's value, even if the watch is made entirely in Switzerland, the 60% threshold would not be met if the gold counted towards the total value;
• as a cumulative additional requirement for processed natural products and industrial products, the manufacturing step that gives the product its substantial characteristics (e.g. turning milk into cheese) also has to occur in Switzerland;
• services may be called "Swiss made" if the service provider has its seat and at least one actual place of business in Switzerland.

If the criteria above are met, the Swiss cross may also be used on goods (until now, it can only be used for services, but this provision has been largely ignored). It is proposed that geographical indications can be protected for non-agricultural goods, too (e.g. "Genève" for watches).

The criteria are detailed and will undoubtedly give room for disputes in borderline cases. Given the stakes involved, one may expect that the wording of the amendment will change during parliamentary debate.  Class46 will keep you posted.

More information here.