Toblerone is one of the most famous brands of chocolates in the world. Its history started in the early 20 century when Emil Baumann and Theodor Tobler created the product formula and its unique triangle shape that by itself is a registered trademark around the world.
Recently, the company owner of the brand Mondelez International Inc. announced its plan to transfer the production of the chocolate to Slovakia.
This is the reason why Mondelez has to change some elements of Toblerone’s packaging. In the future, the visual element of the well-known Matterhorn maintain will disappear from Toblerone as well as the claim “made in Switzerland”.
The reason for this is the strict Swiss law that protects Swissness. According to this legislation, one product can be labeled as made in the country and can use distinctive Swiss signs and geographical places only if 80% of the raw materials needed for the production are originating from Switzerland, for milk the requirement is 100%. There are some exceptions, for raw materials such as cacao which cannot be produced in the country.
This is a good example, of how one country’s reputation related to quality characteristics can be maintained over time. Apart from this, such an approach helps significantly in the development of the local economy too.
The Swiss Federal Court has issued a ruling in a lawsuit between the well-known chocolate producer Lindt & Sprüngli and the grocery stores chain Lidl.
The case concerns the following chocolate bunny offered by Lidl under trademark Favorina:
This product resembles the famous golden chocolate bunny produced by Lindt & Sprüngli for which the company has the following registered 3D trademark in Switzerland.
Due to this, a lawsuit was initiated.
Taking into account all facts and evidence, the Court found a trademark infringement considering Lidl’s product similar enough in order to create confusion in the public mind. The Court issued an injunction against Lidl and prohibited the store’s chain from producing and distributing copies of the Lindt golden bunny.
According to the Court, the dermoscopic surveys provided by Lindt & Sprüngli proved unquestionably that the shape of the Lindt Gold Bunny has become a trademark through long and intensive market use. What’s more this conclusion does not depend on the color of the product at hand.
The Court dismissed the argument that the available Favorina trademark label on Lidl’s product can distinguish both products in the consumers’ eyes. The reason for this was the fact that consumers do not pay high attention when purchasing foodstuff which means that they can buy a product only based on its recognizable shape without the need to read the mark on it.
Source: Kluwer Trademark Blog
Nestle lost quite an important dispute in Switzerland regarding a figurative trademark for its famous Nespresso capsules.
Nestle registered a figurative trademark for its coffee capsule for the first time in Switzerland in 2000. After this an attempt for registration of equal EU trademark failed on absolute grounds.
Nevertheless the company succeeded to register this mark in Germany too.
Everything was fine until another Swiss company Ethical Coffee Company, started to offer biodegradable coffee capsules with a similar shape to this of Nespresso that fits to Nestle’s coffee machines.
Because of this Nestle attacked its competitors with trademark infringement lawsuits in Germany and Switzerland.
As a counter attack Ethical Coffee Company successfully canceled Nestle’s German mark, a decision upheld by the The Federal Patent Court in 2017. The ground for this cancelation was the fact that the form of the coffee capsule performs technical functions.
In Switzerland, the Court canceled the mark finding that Nestle failed to prove that the form is perceived as a source of trade origin.
The decision was appealed but the Supreme Court upheld it adding additional grounds for the cancelation. According to the Court, the mark has technical aspects. One of the reasons for this conclusion is the fact that Nestle’s competitors have to abide by this particular form in order their capsules to fit the coffee machines. These capsules has a specific form that is necessary in order the coffee machine to use it and to make a coffee successfully.
This case illustrate how difficult protection of figurative trademark can be especially when such trademarks are related to machines.
Source: Meyer-Dulheuer MD Legal Patentanwälte PartG mbB
Some amendments to the Copyright Law of Switzerland have been made recently, which aim is to make the law more responsive to the new digital era.
One of the amendments concerns the protection of photographs. Until recently, it was possible only photos with individual character, result of creative efforts, to be protected in Switzerland. All other ordinary photographs with just a technical character were not subject to any protection.
This changed on 01.04.2020. From that moment on even photos without individual character will be protected by copyright although the term of protection will be 50 years from the date of their creation in contrast with 70 years after the death of the author in the case of original photos.
The new rules will be valid for photographs created before the date when the amendments came into force in case that the photos were not been used. For situations where such photos have been put in use, for advertisement, in catalogs etc., the new amendments will be not valid.
Source: CMS von Erlach Poncet AG – Simone Brauchbar Birkhäuser and Aline Steffen, for Lexology.
The the Swiss Federal Administrative Court has rules in a case that regards two Swiss trademark applications for “BVLGARI VAULT” (for classes 9, 38 and 42) and “BVLGARI” (for classes 36 and 43).
The Swiss Patent Office refused both of them based on absolute grounds – indication of geographical origin. The reason is that BVLGARI was almost identical with the French word “Bulgarie” which is the name of the country Bulgaria.
The decision was appealed.
According to the Court, these signs although an indication of a geographical place, the name of a country, can be registered as trademarks. The argument for this was the Supreme court’s practice which allows such registration in case that the sign has acquired secondary meaning.
The Court considered that this is the case with both applications. Due to the long market presence consumers are able to recognize BVLGARI for different goods such as soaps; perfumery, essential oils, cosmetic products, hair lotions”, “sunglasses”, “jewelry, watches etc. What’s more the Court allowed both trademarks for other goods and services in classes 9, 38, 42 and 43 because it was typical companies nowadays to use their marks for related trade, production and marketing activities.
Source: Markus Frick и Benno Fischer-Siddiqui Walder Wyss, Lexology
WIPO published its Global Innovation Index for 2019. Switzerland was ranked as the most innovative nation in the world followed by Sweden and the US. The rest of the countries in the top 10 are Nederland, Finland, the UK, Singapour, Germany, Denmark, and Israel.
Bulgaria is ranked 40 which is three places behind the last year’s position. More data for the country can be found here.
More information regarding this index you can found here.
Peter Schramm и Guillaume Fournier published an engaging article for Lexology which reveals some problem for the US company Apple to register its word mark APPLE in Switzerland.
In the case at hand, the local Patent Office refused the company’s wordmark for the following goods: in Class 14 – jewellery goods and in Class 28 – games and playing cards, electronic games, manually operated and electronic computer games, video games, interactive games and interactive computer toys.
According to the Office in the case of jewellery, apple is widely used as their form due to which it is descriptive.
Regarding toys and computer games, the Office considers that apple as a fruit is a common form either for their material creation in the case of physical toys or as an image and motive in the case of computer games.
This comes to show how important submitting of pieces of evidence for acquired distinctiveness is concerning such marks especially in countries such as Switzerland where the interpretation for descriptiveness and distinctiveness could be quite interesting.