THE “SWISSNESS” LEGISLATION AND ITS IMPACT ON TOBLERONE

INTRODUCTION

In the land of watches, chocolates, and precision, a label reigns supreme – "Swiss Made." Switzerland's "Swissness" legislation stands tall as the guardian of this iconic emblem of quality, craftsmanship, and distinction. The "Swissness" legislation aims to safeguard the Swiss excellence by protecting the cherished "Swiss Made" label and prevent any misuse that could harm its reputation. Since its enactment on 1st January 2017, the "Swissness" legislation has been a powerful force in safeguarding the prestigious reputation of Swiss products and services. As Swiss indications of source gain popularity both at home and abroad, they also become more enticing to those seeking to exploit them for their gain without meeting the necessary criteria. This legislation stands firm against such free riders, fortifying the protection of the revered 'Made in Switzerland' designation and the iconic Swiss cross. By curbing their misuse, it ensures that the true value of the 'Swiss' brand remains preserved for generations to come. 

FEDERAL ACT OF 28 AUGUST 1992 ON THE PROTECTION OF TRADE MARKS AND INDICATIONS OF SOURCE (TRADE MARK PROTECTION ACT, TMPA) 

Article 47 under the Federal Act on the Protection of Trademarks and Indications of Source, talks about Indications of Source being direct or indirect references to the geographical origin of goods or services, including references to their characteristics or the quality associated with their origin. One of the key prohibitions under the "Swissness" legislation is using misleading indications of source or any designations that could be mistaken for incorrect information about the origin of a product or service.

Article 48 talks about Indication of Source for goods being considered correct if the requirements under Article 48a to 48c are fulfilled, along with the fulfilment of the additional requirements regarding compliance with manufacturing/ processing principles /quality requirements that are either customary or prescribed in the place of origin need to be fulfilled. In every situation, the specific requirements are decided based on what the public understands and how it may impact the reputation of the products. For natural products and foodstuffs with Swiss indications of source, their origin or processing must come from within Swiss territory and customs union areas. Any action that might deceive Swiss consumers is strictly prohibited and avoided.

The goods in the above-mentioned are divided into three categories: Article 48a, 48b and 48c. Article 48a talks about Natural products in which the place of extraction/ harvest/ rearing/ hunting etc. are kept as the main criteria. Article 48b focuses on Foodstuffs wherein it is stated that with the exception of natural products and certain calculations pertaining thereof, the origin of a foodstuff is from a place from which at least 80% of the raw material weight that makes up the foodstuff comes from and 100% in the case of milk and dairy products. Furthermore, the indication of source must accurately match the location where the processing occurred, as it is this processing that imparts the foodstuff with its essential characteristics. Article 48c talks about other products, in particular industrial products and the same are to correspond to the place where at least 60% of the manufacturing costs are incurred. Additionally, the indication of source must align with the place where the activity responsible for giving the product its essential characteristics occurred. In every scenario, a crucial manufacturing step must have taken place at the designated location in question. 

SWISS BLISS TO LEGAL TWIST: TOBLERONE AND SWISS LEGISLATION

The well-known chocolate brand, Toblerone, stands as an exemplar in its industry, producing an impressive 7 billion bars yearly. With a robust international presence, these chocolates are exported to 120 countries currently, captivating consumers worldwide. Notably, Toblerone's prominence extends to airport duty-free shops, where a bar sells every two seconds, leaving a lasting impression on global travellers.  In June 2022, it was announced that in order to cut costs, Toblerone will shift a part of its production from Bern, Switzerland to Bratislava, Slovakia. Under the purview of “Swissness” legislation, stringent regulations govern the usage of indications of source to uphold the authenticity and integrity of products. Misleading or incorrect designations could potentially misguide consumers, undermine the brand's/ mark’s reputation, and violate established legal standards. Therefore, this in-process shift of the production results in Toblerone not meeting the criteria set in the “Swissness” legislation. With Toblerone's planned delocalization of a portion of its Swiss chocolate production outside of Switzerland in the forthcoming months, marks such as "Swiss chocolate," "of Switzerland," "Made in Switzerland," and even iconic imagery like the Matterhorn ("Cervin") symbolizing Swiss heritage need to be removed in the scenario when provenance of these chocolate products no longer remains within Switzerland.

Even though the expected timeline for this shift is the end of 2023, a revamped packaging can be found on the shelves and on the official website of Toblerone.  

In order to be legally compliant with the “Swissness” Legislation, as can be observed in Exhibit A and B, “SWISS MILK CHOCOLATE” has been replaced with “MILK CHOCOLATE” and “OF SWITZERLAND” has been replaced by “ESTABLISHED IN SWITZERLAND 1908”. The iconic and well-known Matterhorn mark has been changed as well to have a more generic mountain and a triangular-esq silhouette to it, along with the iconic bear in the revamped version to be smaller and less detail oriented, as it is showcased in Exhibit C and D. 

CONCLUSION

The essence of IPR lies in its ability to protect trademarks, logos, and other unique elements that set a mark/ brand apart from its competitors. In the case of Toblerone, a renowned Swiss chocolate brand, its decision to modify its logo and packaging to comply with the "Swissness" legislation demonstrates a profound appreciation for the significance of IPR in preserving the integrity of the "Swiss Made" mark. The "Swissness" legislation plays an instrumental role in safeguarding the authenticity of Swiss products and services, ensuring they genuinely embody the country's legacy of precision, quality, and craftsmanship. By adhering to the legislation, Toblerone reinforces its commitment to upholding its national heritage. Additionally, IPR-driven initiatives like Toblerone's compliance with the "Swissness" legislation contribute to the overall preservation of Swiss marks' reputation on the global stage. IPR protection incentivizes companies to invest in research, development, and unique product offerings, knowing that their distinctive contributions will be safeguarded under the umbrella of intellectual property laws. By way of embracing the “Swissness legislation”, Toblerone came through as an example for the rest of the world as to how companies can sustain themselves in the competitive market while keeping the law in mind and preserving their legacy.