Preliminary remarks As the ordinances implementing the new Federal Law on Agriculture are still in the process of being adopted and published, the Swiss delegation prefers to attach to this document only those texts whose adoption is considered definitive. The laws and regulations on geographical indications will be fully updated once the ordinances have entered into force and been officially published. Where wines are concerned, the present system for the protection of geographical indications for wines is described in document IP/Q2/CHE/1, Section III (Switzerland’s replies to questions posed by the EC). It is different from the system already in place for certain agricultural products (registration at federal level). On 1 January 1999, a new ordinance will replace the text in force up to 31 December 1998 (Decree on Viticulture). Very briefly, it can be said that the system will be based on the same approach: registration will be the responsibility of the cantons which will notify their lists to the competent federal authority; the latter will then publish a register of geographical indications. If necessary, the Swiss delegation will supplement its responses concerning geographical indications for wines in a separate document. The Swiss delegation reserves the right to add to or amend these responses as the systems introduced are further developed.

In Switzerland, geographical indications are protected in various ways: 1.1 For some products (agricultural products): by a formal notification/registration procedure, at federal level, for appellations of origin and geographical indications. See the reply to question 2 below for more details. 1.2 For wine-sector products: by cantonal regulations on appellations of origin. See the reply to question 2 below for more details. 1.3 For services and products other than the agricultural products mentioned above: by the protection of indications of source, granted automatically, without a formal notification/registration procedure, provided that the legal conditions are satisfied (see replies to questions 8 to 10 below for more details); this protection is also applicable when agricultural products are not registered under the formal procedure mentioned above. 1.4 By the law on unfair competition (inaccurate or misleading descriptions of goods, services, etc.). In accordance with the regular practice of the courts, it is possible to have concurrent application – in civil but not criminal law – of the legal protection derived from a special intellectual property (IP) law and the law on unfair competition (LCD). The special IP laws exclude the application of the LCD only if the former regulate the question completely and, in particular, if they provide more extensive protection. If an intellectual property right cannot be protected under a special law, or if the relevant protection has not been obtained or no longer exists, protection cannot be acquired under the LCD. In other words, it is possible to have concurrent application of the LCD and IP laws but not to obtain an extension of the protection afforded by the IP laws by seeking recourse to the LCD. The recognition of a geographical indication does not always require its registration (see reply 1.2 to question 1 above).

[Answer 2: No. There is not one single regime for all products. 2.1 In general, the geographical indications of products and services are protected by the Federal Law on the Protection of Trademarks and Indications of Source (LPM). Until the adoption of special rules for the geographical indications of agricultural products in 1997, the LPM also covered the qualified indication of source (corresponding to the appellation of origin). Since 1997, if no request for the registration of an appellation of origin or geographical indication is made for these agricultural products, the LPM continues to apply. The LPM also covers craft and industrial products and services. 2.2 The so-called “qualified” geographical indications of agricultural products (and processed agricultural products) enjoy additional (absolute) protection based on a registration system. This protection can only be obtained by observing certain very strict rules (specifications, etc.; for further details see the replies to questions 8 to 10 below). 2.3 In the case of viticultural products, it is the responsibility of the cantons to establish the necessary rules with regard to registered appellations of origin. The cantons must also maintain a list of the production areas relating to their appellations of origin and indications of source (new Ordinance on wine).]

[Answer 8: The definitions vary according to the different laws and regulations for products and services. 8.1 In the context of the LPM Indication of source (“indication de provenance” – “Herkunftsangabe”): Any reference, direct or indirect, to the geographical source of products or services, including references to properties or quality in relation to the source. Geographical names or signs which are not considered by the circles concerned to be a reference to the source of products or services are not indications of source within the meaning of the LPM (Article 47.1, LPM). • Direct indications of source are precise designations of the geographical source of a product or service: names of places, continents, countries, regions, towns, districts or valleys. • Indirect indications of source do not refer to a particular place or region explicitly but by means of verbal or figurative symbols such as names or well-known representations of mountains, lakes, rivers or monuments of national or international renown, well-known emblems of cities, or names or figurative representations of famous historical personages such as “William Tell”. The following are examples of indirect indications: the New York Statue of Liberty can be clearly interpreted as a reference to the United States; a graphical representation of the Matterhorn is considered to be a reference to Switzerland or Valais, depending on the product concerned. Its presence in a mark, in verbal or graphic form, imposes a corresponding restriction on the product. See below, reply 8.2 to question 8, for the additional regime for agricultural and processed agricultural products and reply 8.3 for wine-sector products. The LPM applies when the other protection regimes for agricultural products are not invoked. 8.2 In the context of the Ordinance on PAOs and PGIs (agricultural products other than wine, i.e. including spirits)8 : • Protected or registered appellation of origin (PAO or RAO): name of a region or a place used to describe an agricultural product or processed agricultural product originating in that region or place whose quality or characteristics are essentially or exclusively due to a particular geographical environment, with its inherent natural and human factors, and which is produced, processed and prepared within a defined geographical area. Traditional (non-geographical) names of agricultural products which fulfil the aforementioned conditions can be registered as appellations of origin (Article 2). • Protected geographical indication (PGI): name of a region or a place used to describe an agricultural product or processed agricultural product originating in that region or place which possesses a specific quality, reputation or other characteristics attributable to that geographical origin and is produced, processed or prepared within a defined geographical area. (Thus the requirements for the PGI are less restrictive than those for the PAO) (Article 3). 8.3 In the context of the Ordinance on wine (entry into force 1 January 1999): • Appellation of origin: designates grapes, musts or wines of recognized quality from a geographically defined area such as a canton, cantonal region, commune, locality, chateau or domaine. Wines with an appellation of origin may only come from grapes harvested in the geographical area concerned which fulfil the conditions specified for category 1 (natural minimum sugar content by batch and limited production per unit area).9 The cantons define the use of appellations of origin. They determine the production area and the authorized assemblages (Article 10). • Registered appellation of origin: designates grapes, musts and wines of recognized quality which fulfil the conditions laid down for the appellation of origin and, moreover, meet the additional requirements established by the canton, including at least the following: delimitation of the wine-growing area; varieties; methods of cultivation; minimum natural sugar content; maximum yield per unit area; vinification methods; analysis and organoleptic examination (Article11). • A registered appellation of origin may not at the same time be an appellation of origin as described above. • Indication of source (“indication de provenance” – “Herkunftsbezeichnung”): designates grapes, musts and wines from a geographically defined area. Indication of source is taken to mean the name of the region, or part thereof if it extends over more than one canton, or a traditional designation that refers to a geographical area. Products with an indication of source may only come from grapes harvested in the geographical area concerned which fulfil the conditions laid down for category 2 (minimum natural sugar content by batch lower than for category 1) (Article 12).]

[Answer 9: The question is ambiguous (examples of what the authors have in mind would be welcome). Does the question relate solely to indirect geographical indications (well-known representations of a locality, region or district)? Until further explanations are provided, the following reply must be regarded as provisional. In the context of the LPM: see the definition in reply 8.1 to question 8 above and the criteria under the reply to question 10 below. The definition is broad enough to include a whole range of criteria: properties (characteristics), quality, reputation. If the question concerns quality products or products with a high reputation bearing an indirect geographical indication, the answer is yes. As a minimum requirement, the indication must relate to the source (Article 47.1, LPM). For the definition of “source” see the reply to question 10 below. However, the producers or other entities may agree on additional production and quality requirements. In the context of the Ordinance on PAOs and PGIs: see the definitions in reply 8.2 to question 8 above and the criteria under the reply to question 10 below. For the PAO and the PGI, the definition refers, in particular, to criteria of quality or reputation which are directly linked to the geographical area. In the context of the Ordinance on wine: see the definitions under reply 8.3 to question 8 above and the criteria under the reply to question 10 below. The definitions refer, in particular, to criteria of quality or reputation which are directly linked to the geographical production area. A wine appellation need not correspond to a geographical name. For example, the name “Goron” is an indication of source within the meaning of Article 12 of the Ordinance on wine (“traditional designation”); it corresponds to a geographical area in Valais. The indication “Goron” is linked to criteria of quality and reputation which directly evoke the Canton of Valais. The same applies to the appellation “Nostrano” for wine from Ticino.]

[Answer 10: The following criteria may be taken into consideration: 10.1 Under the LPM: The source of a product is determined by the place of manufacture or by the source of the basic materials or components used. Additional conditions may be imposed, such as the observance of customary or locally prescribed manufacturing principles or quality requirements (Articles 48.1 and 48.2, LPM). In each specific case, the criteria must be defined in terms of their influence on the reputation of the products (Article 48.3, LPM). Thus, the LPM does not make any terminological distinction between an indication of source and an appellation of origin. However, it covers the concept of a “qualified” indication of source, i.e. any reference to a place which enjoys a special reputation for the products in question. The characteristics of the product must be due to the geographical environment of a specific country, region or place (natural and/or human factors). All products from the geographical area are entitled to the same system of protection under the LPM (e.g. “Swiss” for chocolate or “Geneva” for watches, “Adelbodner” for mineral water, Langenthal porcelain, St-Gall embroidery). The source of a service is determined by one of the following criteria: the registered office of the service provider, the nationality of the persons who effectively control the commercial policy and management, or the domicile of the persons who effectively control the commercial policy and management. Further conditions may be imposed, such as observance of the customary or prescribed principles for the provision of the services in question or a traditional link between the service provider and the source country (Article 49, LPM). Specific criteria are laid down. For example, for the geographical indication “Swiss made” for watches: Swiss movement, encasement and final inspection in Switzerland (Article 1(a), “Swiss made” Ordinance). 10.2 Under the Ordinance on PAOs and PGIs: The criteria to be met for a PAO are as follows: agricultural product or processed agricultural product originating in a certain region, possession of a certain quality or characteristics essentially or exclusively due to natural and human factors, all the stages (production, processing and preparation) must have taken place in the defined geographical area, and the name of the product must not be generic (Articles 2 and 4). With respect to PGIs: agricultural product or processed agricultural product originating in a certain region; possession of a quality, reputation or other characteristic attributable to that geographical area; at least one of the stages (production, processing or preparation) must have taken place in the defined area; the name of the product must not be generic (Articles 3 and 4). A “generic” name is a name which, although it relates to the place where the product was originally produced or marketed, has become a common name for that product. To establish whether a name has become generic, account is taken of the views of the producers and consumers, especially in its region of origin, and those of the cantonal authorities (Article 4). According to the Ordinance on PAOs and PGIs, a name must designate a single product and not a group of products (e.g. the expression “authentic products of the region of Enhaut”, in the Canton of Vaud, could not be registered as a PAO or PGI). In this case a trademark is more effective (collective mark (Article 22, LPM) or guarantee mark (Article 21, LPM)). 10.3 According to the Ordinance on wine: See the criteria listed in the three definitions (AO, RAO and IS) under reply 8.3 to question 8 above.]

No. There is not one single regime for all products. 2.1 In general, the geographical indications of products and services are protected by the Federal Law on the Protection of Trademarks and Indications of Source (LPM). Until the adoption of special rules for the geographical indications of agricultural products in 1997, the LPM also covered the qualified indication of source (corresponding to the appellation of origin). Since 1997, if no request for the registration of an appellation of origin or geographical indication is made for these agricultural products, the LPM continues to apply. The LPM also covers craft and industrial products and services. 2.2 The so-called “qualified” geographical indications of agricultural products (and processed agricultural products) enjoy additional (absolute) protection based on a registration system. This protection can only be obtained by observing certain very strict rules (specifications, etc.; for further details see the replies to questions 8 to 10 below). 2.3 In the case of viticultural products, it is the responsibility of the cantons to establish the necessary rules with regard to registered appellations of origin. The cantons must also maintain a list of the production areas relating to their appellations of origin and indications of source (new Ordinance on wine).

[Answer 8: The definitions vary according to the different laws and regulations for products and services. 8.1 In the context of the LPM Indication of source (“indication de provenance” – “Herkunftsangabe”): Any reference, direct or indirect, to the geographical source of products or services, including references to properties or quality in relation to the source. Geographical names or signs which are not considered by the circles concerned to be a reference to the source of products or services are not indications of source within the meaning of the LPM (Article 47.1, LPM). • Direct indications of source are precise designations of the geographical source of a product or service: names of places, continents, countries, regions, towns, districts or valleys. • Indirect indications of source do not refer to a particular place or region explicitly but by means of verbal or figurative symbols such as names or well-known representations of mountains, lakes, rivers or monuments of national or international renown, well-known emblems of cities, or names or figurative representations of famous historical personages such as “William Tell”. The following are examples of indirect indications: the New York Statue of Liberty can be clearly interpreted as a reference to the United States; a graphical representation of the Matterhorn is considered to be a reference to Switzerland or Valais, depending on the product concerned. Its presence in a mark, in verbal or graphic form, imposes a corresponding restriction on the product. See below, reply 8.2 to question 8, for the additional regime for agricultural and processed agricultural products and reply 8.3 for wine-sector products. The LPM applies when the other protection regimes for agricultural products are not invoked. 8.2 In the context of the Ordinance on PAOs and PGIs (agricultural products other than wine, i.e. including spirits)8 : • Protected or registered appellation of origin (PAO or RAO): name of a region or a place used to describe an agricultural product or processed agricultural product originating in that region or place whose quality or characteristics are essentially or exclusively due to a particular geographical environment, with its inherent natural and human factors, and which is produced, processed and prepared within a defined geographical area. Traditional (non-geographical) names of agricultural products which fulfil the aforementioned conditions can be registered as appellations of origin (Article 2). • Protected geographical indication (PGI): name of a region or a place used to describe an agricultural product or processed agricultural product originating in that region or place which possesses a specific quality, reputation or other characteristics attributable to that geographical origin and is produced, processed or prepared within a defined geographical area. (Thus the requirements for the PGI are less restrictive than those for the PAO) (Article 3). 8.3 In the context of the Ordinance on wine (entry into force 1 January 1999): • Appellation of origin: designates grapes, musts or wines of recognized quality from a geographically defined area such as a canton, cantonal region, commune, locality, chateau or domaine. Wines with an appellation of origin may only come from grapes harvested in the geographical area concerned which fulfil the conditions specified for category 1 (natural minimum sugar content by batch and limited production per unit area).9 The cantons define the use of appellations of origin. They determine the production area and the authorized assemblages (Article 10). • Registered appellation of origin: designates grapes, musts and wines of recognized quality which fulfil the conditions laid down for the appellation of origin and, moreover, meet the additional requirements established by the canton, including at least the following: delimitation of the wine-growing area; varieties; methods of cultivation; minimum natural sugar content; maximum yield per unit area; vinification methods; analysis and organoleptic examination (Article11). • A registered appellation of origin may not at the same time be an appellation of origin as described above. • Indication of source (“indication de provenance” – “Herkunftsbezeichnung”): designates grapes, musts and wines from a geographically defined area. Indication of source is taken to mean the name of the region, or part thereof if it extends over more than one canton, or a traditional designation that refers to a geographical area. Products with an indication of source may only come from grapes harvested in the geographical area concerned which fulfil the conditions laid down for category 2 (minimum natural sugar content by batch lower than for category 1) (Article 12).]

[Answer 9: The question is ambiguous (examples of what the authors have in mind would be welcome). Does the question relate solely to indirect geographical indications (well-known representations of a locality, region or district)? Until further explanations are provided, the following reply must be regarded as provisional. In the context of the LPM: see the definition in reply 8.1 to question 8 above and the criteria under the reply to question 10 below. The definition is broad enough to include a whole range of criteria: properties (characteristics), quality, reputation. If the question concerns quality products or products with a high reputation bearing an indirect geographical indication, the answer is yes. As a minimum requirement, the indication must relate to the source (Article 47.1, LPM). For the definition of “source” see the reply to question 10 below. However, the producers or other entities may agree on additional production and quality requirements. In the context of the Ordinance on PAOs and PGIs: see the definitions in reply 8.2 to question 8 above and the criteria under the reply to question 10 below. For the PAO and the PGI, the definition refers, in particular, to criteria of quality or reputation which are directly linked to the geographical area. In the context of the Ordinance on wine: see the definitions under reply 8.3 to question 8 above and the criteria under the reply to question 10 below. The definitions refer, in particular, to criteria of quality or reputation which are directly linked to the geographical production area. A wine appellation need not correspond to a geographical name. For example, the name “Goron” is an indication of source within the meaning of Article 12 of the Ordinance on wine (“traditional designation”); it corresponds to a geographical area in Valais. The indication “Goron” is linked to criteria of quality and reputation which directly evoke the Canton of Valais. The same applies to the appellation “Nostrano” for wine from Ticino.]

[Answer 10: The following criteria may be taken into consideration: 10.1 Under the LPM: The source of a product is determined by the place of manufacture or by the source of the basic materials or components used. Additional conditions may be imposed, such as the observance of customary or locally prescribed manufacturing principles or quality requirements (Articles 48.1 and 48.2, LPM). In each specific case, the criteria must be defined in terms of their influence on the reputation of the products (Article 48.3, LPM). Thus, the LPM does not make any terminological distinction between an indication of source and an appellation of origin. However, it covers the concept of a “qualified” indication of source, i.e. any reference to a place which enjoys a special reputation for the products in question. The characteristics of the product must be due to the geographical environment of a specific country, region or place (natural and/or human factors). All products from the geographical area are entitled to the same system of protection under the LPM (e.g. “Swiss” for chocolate or “Geneva” for watches, “Adelbodner” for mineral water, Langenthal porcelain, St-Gall embroidery). The source of a service is determined by one of the following criteria: the registered office of the service provider, the nationality of the persons who effectively control the commercial policy and management, or the domicile of the persons who effectively control the commercial policy and management. Further conditions may be imposed, such as observance of the customary or prescribed principles for the provision of the services in question or a traditional link between the service provider and the source country (Article 49, LPM). Specific criteria are laid down. For example, for the geographical indication “Swiss made” for watches: Swiss movement, encasement and final inspection in Switzerland (Article 1(a), “Swiss made” Ordinance). 10.2 Under the Ordinance on PAOs and PGIs: The criteria to be met for a PAO are as follows: agricultural product or processed agricultural product originating in a certain region, possession of a certain quality or characteristics essentially or exclusively due to natural and human factors, all the stages (production, processing and preparation) must have taken place in the defined geographical area, and the name of the product must not be generic (Articles 2 and 4). With respect to PGIs: agricultural product or processed agricultural product originating in a certain region; possession of a quality, reputation or other characteristic attributable to that geographical area; at least one of the stages (production, processing or preparation) must have taken place in the defined area; the name of the product must not be generic (Articles 3 and 4). A “generic” name is a name which, although it relates to the place where the product was originally produced or marketed, has become a common name for that product. To establish whether a name has become generic, account is taken of the views of the producers and consumers, especially in its region of origin, and those of the cantonal authorities (Article 4). According to the Ordinance on PAOs and PGIs, a name must designate a single product and not a group of products (e.g. the expression “authentic products of the region of Enhaut”, in the Canton of Vaud, could not be registered as a PAO or PGI). In this case a trademark is more effective (collective mark (Article 22, LPM) or guarantee mark (Article 21, LPM)). 10.3 According to the Ordinance on wine: See the criteria listed in the three definitions (AO, RAO and IS) under reply 8.3 to question 8 above.]

Yes. As already mentioned in reply 2.1 to question 2 above, indications of source for services enjoy so-called ex lege protection.

[Answer 2: No. There is not one single regime for all products. 2.1 In general, the geographical indications of products and services are protected by the Federal Law on the Protection of Trademarks and Indications of Source (LPM). Until the adoption of special rules for the geographical indications of agricultural products in 1997, the LPM also covered the qualified indication of source (corresponding to the appellation of origin). Since 1997, if no request for the registration of an appellation of origin or geographical indication is made for these agricultural products, the LPM continues to apply. The LPM also covers craft and industrial products and services. 2.2 The so-called “qualified” geographical indications of agricultural products (and processed agricultural products) enjoy additional (absolute) protection based on a registration system. This protection can only be obtained by observing certain very strict rules (specifications, etc.; for further details see the replies to questions 8 to 10 below). 2.3 In the case of viticultural products, it is the responsibility of the cantons to establish the necessary rules with regard to registered appellations of origin. The cantons must also maintain a list of the production areas relating to their appellations of origin and indications of source (new Ordinance on wine).]

The relevant laws and regulations are as follows: 4.1 Federal Law on the Protection of Trademarks and Indications of Source of 28 August 1992 (LPM; RS 232.11; Articles 47-51, 52, 55-59, 64-65, 67-68, 70-72)2 ; 4.2 Ordinance on the Protection of Trademarks of 23 December 1992 (OPM; RS 232.111). Despite its misleading title, this Ordinance, which deals mainly with trade mark registration procedures, also concerns indications of source (for example, Articles 53 (identification of producer) and 54-57 (border measures) 3 ; 4.3 Ordinance on the Use of the Designation “Swiss” for Watches of 23 December 1971 4 ; 4.4 Federal Law on Agriculture of 29 April 1998 (LAgr; FF 1998 2112; entry into force 1 January 1999, in particular, Articles 14 sq., 63 sq., 169 and 172)5 (copy of the relevant provisions attached; Annex); 4.5 Ordinance on the Protection of Appellations of Origin and Geographical Indications in respect of Agricultural Products and Processed Agricultural Products of 28 May 1997 (Ordinance on PAOs and PGIs; RS 910.12).6 “Agricultural products” means agricultural products, including spirits, but excluding wines, which are protected by another agricultural law (Ordinance on Viticulture and the Importation of Wine). 4.6 Ordinance on Viticulture and the Importation of Wine (Ordinance on wine; to enter into force on 1 January 1999) 7 ; 4.7 Ordinance of the DFI (Federal Department of the Interior) of 10 December 1981 Regulating the Description of Swiss Cheeses (RS 817.141). (This Ordinance will be repealed on 1 July 2002).

The question is not applicable to Switzerland. See the replies above and below.

6.1 In the context of the Law on the Protection of Trademarks and Indications of Source (LPM): “Swiss made” or “Geneva” for watches, “Swiss” for chocolate, and all the names of agricultural products for which no registration application has been made and accepted. Indirect indications of source, such as “Mont Cervin” (“Matterhorn”) are also protected. “Swiss made” for watches, for example, is protected within the context of a special ordinance whose promulgation is provided for by the LPM (Article 50). In the other cases, the protection afforded by the LPM depends on the existence of a link between the product and the place and the recognition of that relationship by the circles concerned. See also the replies to questions 27 and 52 below (bilateral treaties). 6.2 In the context of the Ordinance on PAOs and PGIs: the geographical indications requested have not yet been registered, but are in the process of registration. By way of example, some 20 registration applications have been received for the following products: Gruyère, Grisons dried meat and Abricotine du Valais. 6.3 In the context of the present Decree on viticulture and the future Ordinance on wine (entry into force 1 January 1999): communal appellations such as Féchy, Auvernier and Malans; cantonal appellations such as Fendant du Valais and Perlan de Genève. With respect to indications of source, descriptions such as Chasselas romand, Ostschweizer Riesling and Sylvaner.

[Answer 27: Switzerland has concluded, for example, several bilateral treaties with Czechoslovakia (taken over by the Czech Republic and Slovakia), Germany, France, Hungary, Portugal and Spain. 16 These treaties are structured as follows: • Treaty proper (provisions on rights and obligations, scope and extent of protection, homonymous indications, transitional, institutional and final provisions); • a protocol supplementing or refining the application of certain provisions of the treaty; • an Annex A and an Annex B containing the negotiated list of geographical indications; • in the case of Switzerland, the list of geographical indications has so far been structured as follows: • Wines: French-speaking Swiss cantons; Eastern Swiss cantons; other Swiss cantons; • food and agriculture: bakery wares, beer, comestibles, fish, meat, horticultural products, preserves, dairy produce, mineral water, spirits, tobacco; • industrial products: glass and porcelain, industrial arts products, machines and hardware, paper articles, games, toys and musical instruments, pottery, stones, earths, textile products. These treaties and their lists represent the mutual recognition of geographical indications and the resulting protection. Irrespective of the requirements of the bilateral treaties, the practice of the Institute is quite strict. A sign is apt to mislead when it contains a geographical indication, alone or combined with other elements, which leads the consumer to believe that the product comes from the country to which the indication relates, whereas in reality it does not (ATF of 25 August 1995 “San Francisco 49ers”). The assessment is made according to the circumstances in each particular case. The criteria which determine the assessment include: • The extent to which the word is well-known as a geographical indication; • an effective or easily identifiable link between the geographical indication and any additional indications contained in the mark that might increase or reduce the risk of the public being misled; • the products or services in question. Where necessary, corrections are demanded. Any misleading correction is rejected (e.g. a correction such as “Tipo Milano, Made in Switzerland” is considered to be misleading).]

[Answer 52: Bilateral agreements on indications of source: - Treaty of 7 March 1967 between the Swiss Confederation and the Federal Republic of Germany on the protection of indications of source and other geographical names, entered into force on 30 August 1969 (RS 0.232.111.191.36); - Treaty of 9 April 1974 between the Swiss Confederation and the Spanish State on the protection of indications of source, appellations of origin and similar names, entered into force on 10 March 1976 (RS 0.232.111.193.32); - Treaty of 14 May 1974 between the Swiss Confederation and the French Republic on the protection of indications of source, appellations of origin and other geographical names, entered into force on 10 October 1975 (RS 0.232.111.193.49); - Treaty of 14 December 1979 between the Swiss Confederation and the Hungarian People’s Republic on the protection of indications of source, appellations of origin and other geographical names, entered into force on 14 August 1981 (RS 0.232.111.194.18); - Treaty of 16 September 1977 between the Swiss Confederation and the Portuguese Republic on the protection of indications of source, appellations of origin and similar names, entered into force on 14 May 1980 (RS 0.232.111.196.54); - Treaty of 16 November 1973 between the Swiss Confederation and the Czechoslovak Socialist Republic on the protection of indications of source, appellations of origin and other geographical names, entered into force on 14 January 1976 (RS 0.232.111.197.41). (N.B. The Treaty has remained in force for the Czech Republic following an exchange of notes on 24 February 1994; the same applies to the Slovak Republic following an exchange of notes on 13 October/25 November 1994.)]

The higher level of protection (“additional protection”) required for wines and spirits under Article 23.2 of the TRIPS Agreement is also provided for other agricultural products, so long as it is a question of a “qualified” geographical indication (products whose quality or characteristics are closely linked with their geographical origin). This protection is afforded by the LAgr and by the Ordinance on PAOs and PGIs. The same level of protection is also provided by the LPM for all products (except registered agricultural products, see above) and services, wherever there is a link between the product and the place and this link is recognized by the circles concerned. The difference between the protection afforded to PAOs and PGIs and that provided for indications of source in the LPM is that, with the former, the protection is based on the principle of the public confidence in registers (Article 9 of the Swiss Civil Code). Their use is subject to very strict rules. Moreover, once registered, PAOs and PGIs cannot become generic.

Yes. The use of delocalizing terms, for example, adding the actual place of production to a false geographical indication or adding indications such as “kind”, “type”, “style”, “according to the method”, “as produced in”, etc. is illegal in Switzerland. Appellations of origin and geographical indications registered under the PAO/PGI Ordinance (for products such as spirits) are protected, in particular, against any commercial use for other products exploiting the reputation of the protected designation and any misuse, infringement or imitation. More precisely, the Ordinance states: “The commercial use, direct or indirect, of a protected name is prohibited …: if the registered name is imitated or evoked; if it is translated; if it is accompanied by a formula such as “kind”, “type”, “method”, “as produced in”, “imitation”, “according to a … recipe” or similar; if the source of the product is indicated” (Article 17.2). Where wines are concerned, the bilateral treaties between Switzerland and third countries all contain, for example, a provision prohibiting the use of delocalizing qualifiers which reads: “The provisions of this article shall apply even when these names or denominations are used in translation or with indication of the true source or with the addition of words such as “kind”, “type”, “as produced in”, “imitation” or the like, or in a modified form if, despite the modification, there is a risk of misunderstanding.” According to the Message (explanatory report) of the LPM (FF 1991 I, p. 36), the definition of indication of source in Article 47 (see under 8.1 above) “also includes indications which emphasize the quality or properties of a product by suggesting an incorrect source (for example, chocolates “prepared according to a Swiss recipe”, “Swiss style watches” or foreign wines called “Dôle”). This provision also covers appellations of origin such as those of the wine sector”. Inasmuch as the new Ordinance on wine and the various cantonal legislations do not all deal expressly with the specific question of delocalizing qualifiers, it is the bilateral treaties and, in particular, the LPM that apply, together with the extensive case law of the Federal Court on the prohibition of delocalizing qualifiers. Finally, geographical indications not registered under the PAO/PGI Ordinance fall under the LPM. Delocalizing qualifiers are also prohibited for these indications.

[Answer 8: [Answer 8: The definitions vary according to the different laws and regulations for products and services. 8.1 In the context of the LPM Indication of source (“indication de provenance” – “Herkunftsangabe”): Any reference, direct or indirect, to the geographical source of products or services, including references to properties or quality in relation to the source. Geographical names or signs which are not considered by the circles concerned to be a reference to the source of products or services are not indications of source within the meaning of the LPM (Article 47.1, LPM). • Direct indications of source are precise designations of the geographical source of a product or service: names of places, continents, countries, regions, towns, districts or valleys. • Indirect indications of source do not refer to a particular place or region explicitly but by means of verbal or figurative symbols such as names or well-known representations of mountains, lakes, rivers or monuments of national or international renown, well-known emblems of cities, or names or figurative representations of famous historical personages such as “William Tell”. The following are examples of indirect indications: the New York Statue of Liberty can be clearly interpreted as a reference to the United States; a graphical representation of the Matterhorn is considered to be a reference to Switzerland or Valais, depending on the product concerned. Its presence in a mark, in verbal or graphic form, imposes a corresponding restriction on the product. See below, reply 8.2 to question 8, for the additional regime for agricultural and processed agricultural products and reply 8.3 for wine-sector products. The LPM applies when the other protection regimes for agricultural products are not invoked. 8.2 In the context of the Ordinance on PAOs and PGIs (agricultural products other than wine, i.e. including spirits)8 : • Protected or registered appellation of origin (PAO or RAO): name of a region or a place used to describe an agricultural product or processed agricultural product originating in that region or place whose quality or characteristics are essentially or exclusively due to a particular geographical environment, with its inherent natural and human factors, and which is produced, processed and prepared within a defined geographical area. Traditional (non-geographical) names of agricultural products which fulfil the aforementioned conditions can be registered as appellations of origin (Article 2). • Protected geographical indication (PGI): name of a region or a place used to describe an agricultural product or processed agricultural product originating in that region or place which possesses a specific quality, reputation or other characteristics attributable to that geographical origin and is produced, processed or prepared within a defined geographical area. (Thus the requirements for the PGI are less restrictive than those for the PAO) (Article 3). 8.3 In the context of the Ordinance on wine (entry into force 1 January 1999): • Appellation of origin: designates grapes, musts or wines of recognized quality from a geographically defined area such as a canton, cantonal region, commune, locality, chateau or domaine. Wines with an appellation of origin may only come from grapes harvested in the geographical area concerned which fulfil the conditions specified for category 1 (natural minimum sugar content by batch and limited production per unit area).9 The cantons define the use of appellations of origin. They determine the production area and the authorized assemblages (Article 10). • Registered appellation of origin: designates grapes, musts and wines of recognized quality which fulfil the conditions laid down for the appellation of origin and, moreover, meet the additional requirements established by the canton, including at least the following: delimitation of the wine-growing area; varieties; methods of cultivation; minimum natural sugar content; maximum yield per unit area; vinification methods; analysis and organoleptic examination (Article11). • A registered appellation of origin may not at the same time be an appellation of origin as described above. • Indication of source (“indication de provenance” – “Herkunftsbezeichnung”): designates grapes, musts and wines from a geographically defined area. Indication of source is taken to mean the name of the region, or part thereof if it extends over more than one canton, or a traditional designation that refers to a geographical area. Products with an indication of source may only come from grapes harvested in the geographical area concerned which fulfil the conditions laid down for category 2 (minimum natural sugar content by batch lower than for category 1) (Article 12).]]

The definitions vary according to the different laws and regulations for products and services. 8.1 In the context of the LPM Indication of source (“indication de provenance” – “Herkunftsangabe”): Any reference, direct or indirect, to the geographical source of products or services, including references to properties or quality in relation to the source. Geographical names or signs which are not considered by the circles concerned to be a reference to the source of products or services are not indications of source within the meaning of the LPM (Article 47.1, LPM). • Direct indications of source are precise designations of the geographical source of a product or service: names of places, continents, countries, regions, towns, districts or valleys. • Indirect indications of source do not refer to a particular place or region explicitly but by means of verbal or figurative symbols such as names or well-known representations of mountains, lakes, rivers or monuments of national or international renown, well-known emblems of cities, or names or figurative representations of famous historical personages such as “William Tell”. The following are examples of indirect indications: the New York Statue of Liberty can be clearly interpreted as a reference to the United States; a graphical representation of the Matterhorn is considered to be a reference to Switzerland or Valais, depending on the product concerned. Its presence in a mark, in verbal or graphic form, imposes a corresponding restriction on the product. See below, reply 8.2 to question 8, for the additional regime for agricultural and processed agricultural products and reply 8.3 for wine-sector products. The LPM applies when the other protection regimes for agricultural products are not invoked. 8.2 In the context of the Ordinance on PAOs and PGIs (agricultural products other than wine, i.e. including spirits)8 : • Protected or registered appellation of origin (PAO or RAO): name of a region or a place used to describe an agricultural product or processed agricultural product originating in that region or place whose quality or characteristics are essentially or exclusively due to a particular geographical environment, with its inherent natural and human factors, and which is produced, processed and prepared within a defined geographical area. Traditional (non-geographical) names of agricultural products which fulfil the aforementioned conditions can be registered as appellations of origin (Article 2). • Protected geographical indication (PGI): name of a region or a place used to describe an agricultural product or processed agricultural product originating in that region or place which possesses a specific quality, reputation or other characteristics attributable to that geographical origin and is produced, processed or prepared within a defined geographical area. (Thus the requirements for the PGI are less restrictive than those for the PAO) (Article 3). 8.3 In the context of the Ordinance on wine (entry into force 1 January 1999): • Appellation of origin: designates grapes, musts or wines of recognized quality from a geographically defined area such as a canton, cantonal region, commune, locality, chateau or domaine. Wines with an appellation of origin may only come from grapes harvested in the geographical area concerned which fulfil the conditions specified for category 1 (natural minimum sugar content by batch and limited production per unit area).9 The cantons define the use of appellations of origin. They determine the production area and the authorized assemblages (Article 10). • Registered appellation of origin: designates grapes, musts and wines of recognized quality which fulfil the conditions laid down for the appellation of origin and, moreover, meet the additional requirements established by the canton, including at least the following: delimitation of the wine-growing area; varieties; methods of cultivation; minimum natural sugar content; maximum yield per unit area; vinification methods; analysis and organoleptic examination (Article11). • A registered appellation of origin may not at the same time be an appellation of origin as described above. • Indication of source (“indication de provenance” – “Herkunftsbezeichnung”): designates grapes, musts and wines from a geographically defined area. Indication of source is taken to mean the name of the region, or part thereof if it extends over more than one canton, or a traditional designation that refers to a geographical area. Products with an indication of source may only come from grapes harvested in the geographical area concerned which fulfil the conditions laid down for category 2 (minimum natural sugar content by batch lower than for category 1) (Article 12).

The question is ambiguous (examples of what the authors have in mind would be welcome). Does the question relate solely to indirect geographical indications (well-known representations of a locality, region or district)? Until further explanations are provided, the following reply must be regarded as provisional. In the context of the LPM: see the definition in reply 8.1 to question 8 above and the criteria under the reply to question 10 below. The definition is broad enough to include a whole range of criteria: properties (characteristics), quality, reputation. If the question concerns quality products or products with a high reputation bearing an indirect geographical indication, the answer is yes. As a minimum requirement, the indication must relate to the source (Article 47.1, LPM). For the definition of “source” see the reply to question 10 below. However, the producers or other entities may agree on additional production and quality requirements. In the context of the Ordinance on PAOs and PGIs: see the definitions in reply 8.2 to question 8 above and the criteria under the reply to question 10 below. For the PAO and the PGI, the definition refers, in particular, to criteria of quality or reputation which are directly linked to the geographical area. In the context of the Ordinance on wine: see the definitions under reply 8.3 to question 8 above and the criteria under the reply to question 10 below. The definitions refer, in particular, to criteria of quality or reputation which are directly linked to the geographical production area. A wine appellation need not correspond to a geographical name. For example, the name “Goron” is an indication of source within the meaning of Article 12 of the Ordinance on wine (“traditional designation”); it corresponds to a geographical area in Valais. The indication “Goron” is linked to criteria of quality and reputation which directly evoke the Canton of Valais. The same applies to the appellation “Nostrano” for wine from Ticino.

[Answer 8: The definitions vary according to the different laws and regulations for products and services. 8.1 In the context of the LPM Indication of source (“indication de provenance” – “Herkunftsangabe”): Any reference, direct or indirect, to the geographical source of products or services, including references to properties or quality in relation to the source. Geographical names or signs which are not considered by the circles concerned to be a reference to the source of products or services are not indications of source within the meaning of the LPM (Article 47.1, LPM). • Direct indications of source are precise designations of the geographical source of a product or service: names of places, continents, countries, regions, towns, districts or valleys. • Indirect indications of source do not refer to a particular place or region explicitly but by means of verbal or figurative symbols such as names or well-known representations of mountains, lakes, rivers or monuments of national or international renown, well-known emblems of cities, or names or figurative representations of famous historical personages such as “William Tell”. The following are examples of indirect indications: the New York Statue of Liberty can be clearly interpreted as a reference to the United States; a graphical representation of the Matterhorn is considered to be a reference to Switzerland or Valais, depending on the product concerned. Its presence in a mark, in verbal or graphic form, imposes a corresponding restriction on the product. See below, reply 8.2 to question 8, for the additional regime for agricultural and processed agricultural products and reply 8.3 for wine-sector products. The LPM applies when the other protection regimes for agricultural products are not invoked. 8.2 In the context of the Ordinance on PAOs and PGIs (agricultural products other than wine, i.e. including spirits)8 : • Protected or registered appellation of origin (PAO or RAO): name of a region or a place used to describe an agricultural product or processed agricultural product originating in that region or place whose quality or characteristics are essentially or exclusively due to a particular geographical environment, with its inherent natural and human factors, and which is produced, processed and prepared within a defined geographical area. Traditional (non-geographical) names of agricultural products which fulfil the aforementioned conditions can be registered as appellations of origin (Article 2). • Protected geographical indication (PGI): name of a region or a place used to describe an agricultural product or processed agricultural product originating in that region or place which possesses a specific quality, reputation or other characteristics attributable to that geographical origin and is produced, processed or prepared within a defined geographical area. (Thus the requirements for the PGI are less restrictive than those for the PAO) (Article 3). 8.3 In the context of the Ordinance on wine (entry into force 1 January 1999): • Appellation of origin: designates grapes, musts or wines of recognized quality from a geographically defined area such as a canton, cantonal region, commune, locality, chateau or domaine. Wines with an appellation of origin may only come from grapes harvested in the geographical area concerned which fulfil the conditions specified for category 1 (natural minimum sugar content by batch and limited production per unit area).9 The cantons define the use of appellations of origin. They determine the production area and the authorized assemblages (Article 10). • Registered appellation of origin: designates grapes, musts and wines of recognized quality which fulfil the conditions laid down for the appellation of origin and, moreover, meet the additional requirements established by the canton, including at least the following: delimitation of the wine-growing area; varieties; methods of cultivation; minimum natural sugar content; maximum yield per unit area; vinification methods; analysis and organoleptic examination (Article11). • A registered appellation of origin may not at the same time be an appellation of origin as described above. • Indication of source (“indication de provenance” – “Herkunftsbezeichnung”): designates grapes, musts and wines from a geographically defined area. Indication of source is taken to mean the name of the region, or part thereof if it extends over more than one canton, or a traditional designation that refers to a geographical area. Products with an indication of source may only come from grapes harvested in the geographical area concerned which fulfil the conditions laid down for category 2 (minimum natural sugar content by batch lower than for category 1) (Article 12).]

[Answer 10: The following criteria may be taken into consideration: 10.1 Under the LPM: The source of a product is determined by the place of manufacture or by the source of the basic materials or components used. Additional conditions may be imposed, such as the observance of customary or locally prescribed manufacturing principles or quality requirements (Articles 48.1 and 48.2, LPM). In each specific case, the criteria must be defined in terms of their influence on the reputation of the products (Article 48.3, LPM). Thus, the LPM does not make any terminological distinction between an indication of source and an appellation of origin. However, it covers the concept of a “qualified” indication of source, i.e. any reference to a place which enjoys a special reputation for the products in question. The characteristics of the product must be due to the geographical environment of a specific country, region or place (natural and/or human factors). All products from the geographical area are entitled to the same system of protection under the LPM (e.g. “Swiss” for chocolate or “Geneva” for watches, “Adelbodner” for mineral water, Langenthal porcelain, St-Gall embroidery). The source of a service is determined by one of the following criteria: the registered office of the service provider, the nationality of the persons who effectively control the commercial policy and management, or the domicile of the persons who effectively control the commercial policy and management. Further conditions may be imposed, such as observance of the customary or prescribed principles for the provision of the services in question or a traditional link between the service provider and the source country (Article 49, LPM). Specific criteria are laid down. For example, for the geographical indication “Swiss made” for watches: Swiss movement, encasement and final inspection in Switzerland (Article 1(a), “Swiss made” Ordinance). 10.2 Under the Ordinance on PAOs and PGIs: The criteria to be met for a PAO are as follows: agricultural product or processed agricultural product originating in a certain region, possession of a certain quality or characteristics essentially or exclusively due to natural and human factors, all the stages (production, processing and preparation) must have taken place in the defined geographical area, and the name of the product must not be generic (Articles 2 and 4). With respect to PGIs: agricultural product or processed agricultural product originating in a certain region; possession of a quality, reputation or other characteristic attributable to that geographical area; at least one of the stages (production, processing or preparation) must have taken place in the defined area; the name of the product must not be generic (Articles 3 and 4). A “generic” name is a name which, although it relates to the place where the product was originally produced or marketed, has become a common name for that product. To establish whether a name has become generic, account is taken of the views of the producers and consumers, especially in its region of origin, and those of the cantonal authorities (Article 4). According to the Ordinance on PAOs and PGIs, a name must designate a single product and not a group of products (e.g. the expression “authentic products of the region of Enhaut”, in the Canton of Vaud, could not be registered as a PAO or PGI). In this case a trademark is more effective (collective mark (Article 22, LPM) or guarantee mark (Article 21, LPM)). 10.3 According to the Ordinance on wine: See the criteria listed in the three definitions (AO, RAO and IS) under reply 8.3 to question 8 above.]

The following criteria may be taken into consideration: 10.1 Under the LPM: The source of a product is determined by the place of manufacture or by the source of the basic materials or components used. Additional conditions may be imposed, such as the observance of customary or locally prescribed manufacturing principles or quality requirements (Articles 48.1 and 48.2, LPM). In each specific case, the criteria must be defined in terms of their influence on the reputation of the products (Article 48.3, LPM). Thus, the LPM does not make any terminological distinction between an indication of source and an appellation of origin. However, it covers the concept of a “qualified” indication of source, i.e. any reference to a place which enjoys a special reputation for the products in question. The characteristics of the product must be due to the geographical environment of a specific country, region or place (natural and/or human factors). All products from the geographical area are entitled to the same system of protection under the LPM (e.g. “Swiss” for chocolate or “Geneva” for watches, “Adelbodner” for mineral water, Langenthal porcelain, St-Gall embroidery). The source of a service is determined by one of the following criteria: the registered office of the service provider, the nationality of the persons who effectively control the commercial policy and management, or the domicile of the persons who effectively control the commercial policy and management. Further conditions may be imposed, such as observance of the customary or prescribed principles for the provision of the services in question or a traditional link between the service provider and the source country (Article 49, LPM). Specific criteria are laid down. For example, for the geographical indication “Swiss made” for watches: Swiss movement, encasement and final inspection in Switzerland (Article 1(a), “Swiss made” Ordinance). 10.2 Under the Ordinance on PAOs and PGIs: The criteria to be met for a PAO are as follows: agricultural product or processed agricultural product originating in a certain region, possession of a certain quality or characteristics essentially or exclusively due to natural and human factors, all the stages (production, processing and preparation) must have taken place in the defined geographical area, and the name of the product must not be generic (Articles 2 and 4). With respect to PGIs: agricultural product or processed agricultural product originating in a certain region; possession of a quality, reputation or other characteristic attributable to that geographical area; at least one of the stages (production, processing or preparation) must have taken place in the defined area; the name of the product must not be generic (Articles 3 and 4). A “generic” name is a name which, although it relates to the place where the product was originally produced or marketed, has become a common name for that product. To establish whether a name has become generic, account is taken of the views of the producers and consumers, especially in its region of origin, and those of the cantonal authorities (Article 4). According to the Ordinance on PAOs and PGIs, a name must designate a single product and not a group of products (e.g. the expression “authentic products of the region of Enhaut”, in the Canton of Vaud, could not be registered as a PAO or PGI). In this case a trademark is more effective (collective mark (Article 22, LPM) or guarantee mark (Article 21, LPM)). 10.3 According to the Ordinance on wine: See the criteria listed in the three definitions (AO, RAO and IS) under reply 8.3 to question 8 above.

[Answer 8: The definitions vary according to the different laws and regulations for products and services. 8.1 In the context of the LPM Indication of source (“indication de provenance” – “Herkunftsangabe”): Any reference, direct or indirect, to the geographical source of products or services, including references to properties or quality in relation to the source. Geographical names or signs which are not considered by the circles concerned to be a reference to the source of products or services are not indications of source within the meaning of the LPM (Article 47.1, LPM). • Direct indications of source are precise designations of the geographical source of a product or service: names of places, continents, countries, regions, towns, districts or valleys. • Indirect indications of source do not refer to a particular place or region explicitly but by means of verbal or figurative symbols such as names or well-known representations of mountains, lakes, rivers or monuments of national or international renown, well-known emblems of cities, or names or figurative representations of famous historical personages such as “William Tell”. The following are examples of indirect indications: the New York Statue of Liberty can be clearly interpreted as a reference to the United States; a graphical representation of the Matterhorn is considered to be a reference to Switzerland or Valais, depending on the product concerned. Its presence in a mark, in verbal or graphic form, imposes a corresponding restriction on the product. See below, reply 8.2 to question 8, for the additional regime for agricultural and processed agricultural products and reply 8.3 for wine-sector products. The LPM applies when the other protection regimes for agricultural products are not invoked. 8.2 In the context of the Ordinance on PAOs and PGIs (agricultural products other than wine, i.e. including spirits)8 : • Protected or registered appellation of origin (PAO or RAO): name of a region or a place used to describe an agricultural product or processed agricultural product originating in that region or place whose quality or characteristics are essentially or exclusively due to a particular geographical environment, with its inherent natural and human factors, and which is produced, processed and prepared within a defined geographical area. Traditional (non-geographical) names of agricultural products which fulfil the aforementioned conditions can be registered as appellations of origin (Article 2). • Protected geographical indication (PGI): name of a region or a place used to describe an agricultural product or processed agricultural product originating in that region or place which possesses a specific quality, reputation or other characteristics attributable to that geographical origin and is produced, processed or prepared within a defined geographical area. (Thus the requirements for the PGI are less restrictive than those for the PAO) (Article 3). 8.3 In the context of the Ordinance on wine (entry into force 1 January 1999): • Appellation of origin: designates grapes, musts or wines of recognized quality from a geographically defined area such as a canton, cantonal region, commune, locality, chateau or domaine. Wines with an appellation of origin may only come from grapes harvested in the geographical area concerned which fulfil the conditions specified for category 1 (natural minimum sugar content by batch and limited production per unit area).9 The cantons define the use of appellations of origin. They determine the production area and the authorized assemblages (Article 10). • Registered appellation of origin: designates grapes, musts and wines of recognized quality which fulfil the conditions laid down for the appellation of origin and, moreover, meet the additional requirements established by the canton, including at least the following: delimitation of the wine-growing area; varieties; methods of cultivation; minimum natural sugar content; maximum yield per unit area; vinification methods; analysis and organoleptic examination (Article11). • A registered appellation of origin may not at the same time be an appellation of origin as described above. • Indication of source (“indication de provenance” – “Herkunftsbezeichnung”): designates grapes, musts and wines from a geographically defined area. Indication of source is taken to mean the name of the region, or part thereof if it extends over more than one canton, or a traditional designation that refers to a geographical area. Products with an indication of source may only come from grapes harvested in the geographical area concerned which fulfil the conditions laid down for category 2 (minimum natural sugar content by batch lower than for category 1) (Article 12).]

Yes. In the context of the Ordinance on PAOs and PGIs, the quality of products entitled to an appellation of origin must be due essentially or exclusively to the geographical environment, which includes both natural and human factors. Where wines are concerned, the geographical environment and human factors are of fundamental importance. In the context of the LPM, the indication of source makes it possible to cover a broader range of products in which human creativity (including know-how) is involved in varying degrees (e.g. Brienz carriage clocks). However, there may be cases in which the indication of source is used simply to indicate the place of manufacture or the source of the basic materials and components used.

The question is not clear. Does it mean: Can the protection offered by a geographical indication be provided by the patent system instead? If that is the question, then the answer is clearly No. On the other hand, if the question reduces to asking what other intellectual property rights can apply to wine sector products and agricultural, craft or industrial products, then the following examples may be cited: right to the creation of new plant species (new vine variety, in the case of wine), patent rights (in a method of manufacturing an agricultural or industrial product or a wine-making process), and trademark and industrial design rights, to mention but a few. Where trademark law is concerned, it should be noted that, if the authorities and groups concerned so desire and are so authorized, they may file an indication of source as a guarantee mark or collective mark. 10 For example, the name “Goron” is not only protected as an indication of source (traditional designation) but has also been registered as a guarantee mark owned by the State of the Canton of Vaud itself.

In the context of the LPM: the geographical region or area is defined, in particular, by the trade. It may also be based on a legal text (e.g. “Swiss Made” for Swiss watches). In the context of the Ordinance on PAOs and PGIs, it is the trade (the producers and/or processors form a group and it is this group that is entitled to file a registration application) that defines the geographical area, on the basis of the existing political boundaries. The area must be coherent and justified by tradition and the typical nature of the product linked with the soil (Articles 6 and 7). In the context of the Ordinance on wine (and, moreover, in the Decree in force until 31 December 1998): the cantons define the production regions and areas, as well as the conditions of use of the appellations of origin and the registration conditions. At present, the Confederation confines itself to establishing the basic definition of appellations of origin and indications of source (see reply 8.3 to question 8 above).

[Answer 8: The definitions vary according to the different laws and regulations for products and services. 8.1 In the context of the LPM Indication of source (“indication de provenance” – “Herkunftsangabe”): Any reference, direct or indirect, to the geographical source of products or services, including references to properties or quality in relation to the source. Geographical names or signs which are not considered by the circles concerned to be a reference to the source of products or services are not indications of source within the meaning of the LPM (Article 47.1, LPM). • Direct indications of source are precise designations of the geographical source of a product or service: names of places, continents, countries, regions, towns, districts or valleys. • Indirect indications of source do not refer to a particular place or region explicitly but by means of verbal or figurative symbols such as names or well-known representations of mountains, lakes, rivers or monuments of national or international renown, well-known emblems of cities, or names or figurative representations of famous historical personages such as “William Tell”. The following are examples of indirect indications: the New York Statue of Liberty can be clearly interpreted as a reference to the United States; a graphical representation of the Matterhorn is considered to be a reference to Switzerland or Valais, depending on the product concerned. Its presence in a mark, in verbal or graphic form, imposes a corresponding restriction on the product. See below, reply 8.2 to question 8, for the additional regime for agricultural and processed agricultural products and reply 8.3 for wine-sector products. The LPM applies when the other protection regimes for agricultural products are not invoked. 8.2 In the context of the Ordinance on PAOs and PGIs (agricultural products other than wine, i.e. including spirits)8 : • Protected or registered appellation of origin (PAO or RAO): name of a region or a place used to describe an agricultural product or processed agricultural product originating in that region or place whose quality or characteristics are essentially or exclusively due to a particular geographical environment, with its inherent natural and human factors, and which is produced, processed and prepared within a defined geographical area. Traditional (non-geographical) names of agricultural products which fulfil the aforementioned conditions can be registered as appellations of origin (Article 2). • Protected geographical indication (PGI): name of a region or a place used to describe an agricultural product or processed agricultural product originating in that region or place which possesses a specific quality, reputation or other characteristics attributable to that geographical origin and is produced, processed or prepared within a defined geographical area. (Thus the requirements for the PGI are less restrictive than those for the PAO) (Article 3). 8.3 In the context of the Ordinance on wine (entry into force 1 January 1999): • Appellation of origin: designates grapes, musts or wines of recognized quality from a geographically defined area such as a canton, cantonal region, commune, locality, chateau or domaine. Wines with an appellation of origin may only come from grapes harvested in the geographical area concerned which fulfil the conditions specified for category 1 (natural minimum sugar content by batch and limited production per unit area).9 The cantons define the use of appellations of origin. They determine the production area and the authorized assemblages (Article 10). • Registered appellation of origin: designates grapes, musts and wines of recognized quality which fulfil the conditions laid down for the appellation of origin and, moreover, meet the additional requirements established by the canton, including at least the following: delimitation of the wine-growing area; varieties; methods of cultivation; minimum natural sugar content; maximum yield per unit area; vinification methods; analysis and organoleptic examination (Article11). • A registered appellation of origin may not at the same time be an appellation of origin as described above. • Indication of source (“indication de provenance” – “Herkunftsbezeichnung”): designates grapes, musts and wines from a geographically defined area. Indication of source is taken to mean the name of the region, or part thereof if it extends over more than one canton, or a traditional designation that refers to a geographical area. Products with an indication of source may only come from grapes harvested in the geographical area concerned which fulfil the conditions laid down for category 2 (minimum natural sugar content by batch lower than for category 1) (Article 12).]

In the Ordinance on wine: no. This question may be decided by intercantonal agreements (e.g. Vully from Fribourg and Vaud). Generally speaking, we are not aware of any problems relating to homonymous communal appellations. If necessary, the situation can be clarified by means of an additional indication (St Saphorin sur Morges as compared with St-Saphorin (Lavaux)). The bilateral treaties which Switzerland has signed with several other countries (see replies to questions 27 and 52 below) contain an homonymous indication clause, which may or may not be supplemented by a protocol.

[Answer 27: Switzerland has concluded, for example, several bilateral treaties with Czechoslovakia (taken over by the Czech Republic and Slovakia), Germany, France, Hungary, Portugal and Spain. 16 These treaties are structured as follows: • Treaty proper (provisions on rights and obligations, scope and extent of protection, homonymous indications, transitional, institutional and final provisions); • a protocol supplementing or refining the application of certain provisions of the treaty; • an Annex A and an Annex B containing the negotiated list of geographical indications; • in the case of Switzerland, the list of geographical indications has so far been structured as follows: • Wines: French-speaking Swiss cantons; Eastern Swiss cantons; other Swiss cantons; • food and agriculture: bakery wares, beer, comestibles, fish, meat, horticultural products, preserves, dairy produce, mineral water, spirits, tobacco; • industrial products: glass and porcelain, industrial arts products, machines and hardware, paper articles, games, toys and musical instruments, pottery, stones, earths, textile products. These treaties and their lists represent the mutual recognition of geographical indications and the resulting protection. Irrespective of the requirements of the bilateral treaties, the practice of the Institute is quite strict. A sign is apt to mislead when it contains a geographical indication, alone or combined with other elements, which leads the consumer to believe that the product comes from the country to which the indication relates, whereas in reality it does not (ATF of 25 August 1995 “San Francisco 49ers”). The assessment is made according to the circumstances in each particular case. The criteria which determine the assessment include: • The extent to which the word is well-known as a geographical indication; • an effective or easily identifiable link between the geographical indication and any additional indications contained in the mark that might increase or reduce the risk of the public being misled; • the products or services in question. Where necessary, corrections are demanded. Any misleading correction is rejected (e.g. a correction such as “Tipo Milano, Made in Switzerland” is considered to be misleading).]

[Answer 52: Bilateral agreements on indications of source: - Treaty of 7 March 1967 between the Swiss Confederation and the Federal Republic of Germany on the protection of indications of source and other geographical names, entered into force on 30 August 1969 (RS 0.232.111.191.36); - Treaty of 9 April 1974 between the Swiss Confederation and the Spanish State on the protection of indications of source, appellations of origin and similar names, entered into force on 10 March 1976 (RS 0.232.111.193.32); - Treaty of 14 May 1974 between the Swiss Confederation and the French Republic on the protection of indications of source, appellations of origin and other geographical names, entered into force on 10 October 1975 (RS 0.232.111.193.49); - Treaty of 14 December 1979 between the Swiss Confederation and the Hungarian People’s Republic on the protection of indications of source, appellations of origin and other geographical names, entered into force on 14 August 1981 (RS 0.232.111.194.18); - Treaty of 16 September 1977 between the Swiss Confederation and the Portuguese Republic on the protection of indications of source, appellations of origin and similar names, entered into force on 14 May 1980 (RS 0.232.111.196.54); - Treaty of 16 November 1973 between the Swiss Confederation and the Czechoslovak Socialist Republic on the protection of indications of source, appellations of origin and other geographical names, entered into force on 14 January 1976 (RS 0.232.111.197.41). (N.B. The Treaty has remained in force for the Czech Republic following an exchange of notes on 24 February 1994; the same applies to the Slovak Republic following an exchange of notes on 13 October/25 November 1994.)]

Under Article 8 of the Federal Constitution, Switzerland has concluded bilateral and multilateral agreements on the protection of indications of source, appellations of origin and similar designations. The international law forms part of domestic law.

The answer is No. However, the question calls for further clarification: What type of protection is intended? As appellations of origin or geographical indications? As trademarks? At present, foreign geographical indications are protected under the bilateral treaties which Switzerland has concluded with certain countries (see the reply to question 52). These indications receive “additional” protection in accordance with Article 23 of the TRIPS Agreement. The treaties also cover products other than wine and spirits (see replies to questions 27 and 52 below). As a general rule, the LPM, which covers broader notions of indications of source than the Ordinance on PAOs and PGIs or that on wine, does not authorize the use of a foreign geographical name in a trademark or as a trademark, on the grounds that a geographical indication is “in the public domain” 11 and cannot be monopolized as a trademark (Article 2(a), LPM). However, there are three cases in which protection as a trademark is possible: • When the public does not understand the indication as being geographical; • when a graphic element and/or other original element give the mark a distinctive character (Article 1.2, LPM). In this case, the protection relates to the graphic style, which determines the overall effect of the mark. • when it has established itself on the foreign market, in the country to which the indication of source refers (e.g. ATF 100 Ib 351 “HAACHT”, Article 2(a), LPM). The same applies when the foreign geographical name has been entered in the trademark register of the country of origin, as long as the mark does not mislead as to the source of the products or services (ATF 117 II 327 “Montparnasse”).

[Answer 27: Switzerland has concluded, for example, several bilateral treaties with Czechoslovakia (taken over by the Czech Republic and Slovakia), Germany, France, Hungary, Portugal and Spain. 16 These treaties are structured as follows: • Treaty proper (provisions on rights and obligations, scope and extent of protection, homonymous indications, transitional, institutional and final provisions); • a protocol supplementing or refining the application of certain provisions of the treaty; • an Annex A and an Annex B containing the negotiated list of geographical indications; • in the case of Switzerland, the list of geographical indications has so far been structured as follows: • Wines: French-speaking Swiss cantons; Eastern Swiss cantons; other Swiss cantons; • food and agriculture: bakery wares, beer, comestibles, fish, meat, horticultural products, preserves, dairy produce, mineral water, spirits, tobacco; • industrial products: glass and porcelain, industrial arts products, machines and hardware, paper articles, games, toys and musical instruments, pottery, stones, earths, textile products. These treaties and their lists represent the mutual recognition of geographical indications and the resulting protection. Irrespective of the requirements of the bilateral treaties, the practice of the Institute is quite strict. A sign is apt to mislead when it contains a geographical indication, alone or combined with other elements, which leads the consumer to believe that the product comes from the country to which the indication relates, whereas in reality it does not (ATF of 25 August 1995 “San Francisco 49ers”). The assessment is made according to the circumstances in each particular case. The criteria which determine the assessment include: • The extent to which the word is well-known as a geographical indication; • an effective or easily identifiable link between the geographical indication and any additional indications contained in the mark that might increase or reduce the risk of the public being misled; • the products or services in question. Where necessary, corrections are demanded. Any misleading correction is rejected (e.g. a correction such as “Tipo Milano, Made in Switzerland” is considered to be misleading).]

[Answer 52: Bilateral agreements on indications of source: - Treaty of 7 March 1967 between the Swiss Confederation and the Federal Republic of Germany on the protection of indications of source and other geographical names, entered into force on 30 August 1969 (RS 0.232.111.191.36); - Treaty of 9 April 1974 between the Swiss Confederation and the Spanish State on the protection of indications of source, appellations of origin and similar names, entered into force on 10 March 1976 (RS 0.232.111.193.32); - Treaty of 14 May 1974 between the Swiss Confederation and the French Republic on the protection of indications of source, appellations of origin and other geographical names, entered into force on 10 October 1975 (RS 0.232.111.193.49); - Treaty of 14 December 1979 between the Swiss Confederation and the Hungarian People’s Republic on the protection of indications of source, appellations of origin and other geographical names, entered into force on 14 August 1981 (RS 0.232.111.194.18); - Treaty of 16 September 1977 between the Swiss Confederation and the Portuguese Republic on the protection of indications of source, appellations of origin and similar names, entered into force on 14 May 1980 (RS 0.232.111.196.54); - Treaty of 16 November 1973 between the Swiss Confederation and the Czechoslovak Socialist Republic on the protection of indications of source, appellations of origin and other geographical names, entered into force on 14 January 1976 (RS 0.232.111.197.41). (N.B. The Treaty has remained in force for the Czech Republic following an exchange of notes on 24 February 1994; the same applies to the Slovak Republic following an exchange of notes on 13 October/25 November 1994.)]

Yes. Swiss law differentiates between these various terms and establishes substantive criteria for distinguishing them (see replies to questions 8 and 10 in document IP/C/13).

[Answer 8: The definitions vary according to the different laws and regulations for products and services. 8.1 In the context of the LPM Indication of source (“indication de provenance” – “Herkunftsangabe”): Any reference, direct or indirect, to the geographical source of products or services, including references to properties or quality in relation to the source. Geographical names or signs which are not considered by the circles concerned to be a reference to the source of products or services are not indications of source within the meaning of the LPM (Article 47.1, LPM). • Direct indications of source are precise designations of the geographical source of a product or service: names of places, continents, countries, regions, towns, districts or valleys. • Indirect indications of source do not refer to a particular place or region explicitly but by means of verbal or figurative symbols such as names or well-known representations of mountains, lakes, rivers or monuments of national or international renown, well-known emblems of cities, or names or figurative representations of famous historical personages such as “William Tell”. The following are examples of indirect indications: the New York Statue of Liberty can be clearly interpreted as a reference to the United States; a graphical representation of the Matterhorn is considered to be a reference to Switzerland or Valais, depending on the product concerned. Its presence in a mark, in verbal or graphic form, imposes a corresponding restriction on the product. See below, reply 8.2 to question 8, for the additional regime for agricultural and processed agricultural products and reply 8.3 for wine-sector products. The LPM applies when the other protection regimes for agricultural products are not invoked. 8.2 In the context of the Ordinance on PAOs and PGIs (agricultural products other than wine, i.e. including spirits)8 : • Protected or registered appellation of origin (PAO or RAO): name of a region or a place used to describe an agricultural product or processed agricultural product originating in that region or place whose quality or characteristics are essentially or exclusively due to a particular geographical environment, with its inherent natural and human factors, and which is produced, processed and prepared within a defined geographical area. Traditional (non-geographical) names of agricultural products which fulfil the aforementioned conditions can be registered as appellations of origin (Article 2). • Protected geographical indication (PGI): name of a region or a place used to describe an agricultural product or processed agricultural product originating in that region or place which possesses a specific quality, reputation or other characteristics attributable to that geographical origin and is produced, processed or prepared within a defined geographical area. (Thus the requirements for the PGI are less restrictive than those for the PAO) (Article 3). 8.3 In the context of the Ordinance on wine (entry into force 1 January 1999): • Appellation of origin: designates grapes, musts or wines of recognized quality from a geographically defined area such as a canton, cantonal region, commune, locality, chateau or domaine. Wines with an appellation of origin may only come from grapes harvested in the geographical area concerned which fulfil the conditions specified for category 1 (natural minimum sugar content by batch and limited production per unit area).9 The cantons define the use of appellations of origin. They determine the production area and the authorized assemblages (Article 10). • Registered appellation of origin: designates grapes, musts and wines of recognized quality which fulfil the conditions laid down for the appellation of origin and, moreover, meet the additional requirements established by the canton, including at least the following: delimitation of the wine-growing area; varieties; methods of cultivation; minimum natural sugar content; maximum yield per unit area; vinification methods; analysis and organoleptic examination (Article11). • A registered appellation of origin may not at the same time be an appellation of origin as described above. • Indication of source (“indication de provenance” – “Herkunftsbezeichnung”): designates grapes, musts and wines from a geographically defined area. Indication of source is taken to mean the name of the region, or part thereof if it extends over more than one canton, or a traditional designation that refers to a geographical area. Products with an indication of source may only come from grapes harvested in the geographical area concerned which fulfil the conditions laid down for category 2 (minimum natural sugar content by batch lower than for category 1) (Article 12).]

[Answer 10: The following criteria may be taken into consideration: 10.1 Under the LPM: The source of a product is determined by the place of manufacture or by the source of the basic materials or components used. Additional conditions may be imposed, such as the observance of customary or locally prescribed manufacturing principles or quality requirements (Articles 48.1 and 48.2, LPM). In each specific case, the criteria must be defined in terms of their influence on the reputation of the products (Article 48.3, LPM). Thus, the LPM does not make any terminological distinction between an indication of source and an appellation of origin. However, it covers the concept of a “qualified” indication of source, i.e. any reference to a place which enjoys a special reputation for the products in question. The characteristics of the product must be due to the geographical environment of a specific country, region or place (natural and/or human factors). All products from the geographical area are entitled to the same system of protection under the LPM (e.g. “Swiss” for chocolate or “Geneva” for watches, “Adelbodner” for mineral water, Langenthal porcelain, St-Gall embroidery). The source of a service is determined by one of the following criteria: the registered office of the service provider, the nationality of the persons who effectively control the commercial policy and management, or the domicile of the persons who effectively control the commercial policy and management. Further conditions may be imposed, such as observance of the customary or prescribed principles for the provision of the services in question or a traditional link between the service provider and the source country (Article 49, LPM). Specific criteria are laid down. For example, for the geographical indication “Swiss made” for watches: Swiss movement, encasement and final inspection in Switzerland (Article 1(a), “Swiss made” Ordinance). 10.2 Under the Ordinance on PAOs and PGIs: The criteria to be met for a PAO are as follows: agricultural product or processed agricultural product originating in a certain region, possession of a certain quality or characteristics essentially or exclusively due to natural and human factors, all the stages (production, processing and preparation) must have taken place in the defined geographical area, and the name of the product must not be generic (Articles 2 and 4). With respect to PGIs: agricultural product or processed agricultural product originating in a certain region; possession of a quality, reputation or other characteristic attributable to that geographical area; at least one of the stages (production, processing or preparation) must have taken place in the defined area; the name of the product must not be generic (Articles 3 and 4). A “generic” name is a name which, although it relates to the place where the product was originally produced or marketed, has become a common name for that product. To establish whether a name has become generic, account is taken of the views of the producers and consumers, especially in its region of origin, and those of the cantonal authorities (Article 4). According to the Ordinance on PAOs and PGIs, a name must designate a single product and not a group of products (e.g. the expression “authentic products of the region of Enhaut”, in the Canton of Vaud, could not be registered as a PAO or PGI). In this case a trademark is more effective (collective mark (Article 22, LPM) or guarantee mark (Article 21, LPM)). 10.3 According to the Ordinance on wine: See the criteria listed in the three definitions (AO, RAO and IS) under reply 8.3 to question 8 above.]

See reply to question 14 of document IP/C/13.

[Answer 14: In the Ordinance on wine: no. This question may be decided by intercantonal agreements (e.g. Vully from Fribourg and Vaud). Generally speaking, we are not aware of any problems relating to homonymous communal appellations. If necessary, the situation can be clarified by means of an additional indication (St Saphorin sur Morges as compared with St-Saphorin (Lavaux)). The bilateral treaties which Switzerland has signed with several other countries (see replies to questions 27 and 52 below) contain an homonymous indication clause, which may or may not be supplemented by a protocol.]

In the context of the Ordinance on PAOs and PGIs: the applicant must be a private group (composed of producers and/or processors and representative of the product) (Article 5). Anyone meeting the requirements laid down in the specification may use the geographical indication without, however, being its owner. In the context of the LPM, the protection for Swiss geographical indications is automatic. It does not require any recognition or registration procedure and neither is there any procedural fee. It should be pointed out that an indication of source can be registered as an “established mark” 12 (whether in the form of an individual mark, a collective mark or a guarantee mark), provided that it has established itself on the market as the distinctive sign of a particular company (see ATF 117 II 324 “VALSER”). The mark is registered with the Institut Fédéral de la Propriété Intellectuelle (Federal Intellectual Property Institute, hereinafter: the Institute) of the Federal Department (Ministry) of Justice and Police. • A guarantee mark is a sign used by several companies under the supervision of its holder, with a view to guaranteeing the quality, geographical origin, method of manufacture or other common characteristics of these companies’ products or services.13 In particular, the following are deemed to be such characteristics: quality (cotton clothing); identical geographical origin (Swiss products, products of a particular canton); similar method of manufacture (organic or free-range products, environmentally friendly products); special technical characteristics (approved products); “fair-trade” products or services . To avoid any conflict of interest, the guarantee mark may not be used by the holder or by a company with which he has close economic ties. For a consideration, the holder must authorize the use of the guarantee mark for products or services with the common characteristics guaranteed by the trademark regulations (Article 21, LPM). The guarantee mark may be used in addition to the registered PAO or PGI if the product concerned includes other essential features not linked to the geographical place; • a collective mark is the sign of a group of production, trade or service companies; it is used to distinguish the products or services of members of the group from those of other companies (Article 22, LPM). Users of both the guarantee mark and the collective mark must observe the corresponding rules. Those for the guarantee mark establish the common characteristics of the products or services guaranteed by the mark; they also provide for effective monitoring of the use of the mark and appropriate penalties (private agreements). The rules for collective marks define the group of companies authorized to use the mark. These rules must not be contrary to public order, morality or the law in force (Article 23). They are approved by the Institute if the conditions of Article 23 are fulfilled. If the rules no longer correspond to the legal requirements and the holder fails to correct them within a time-limit set by the judge, the registration of the mark is cancelled (Article 25). If, contrary to the essential provisions of the rules, the holder tolerates the repeated use of the mark and fails to correct this situation within the time-limit set by the judge, the registration will be cancelled when the time-limit expires (Article 26). The guarantee mark and the collective mark provide protection for a term of ten years, renewable for further ten-year periods.

[Answer 44: In general, given that direct and indirect geographical indications indisputably describe the geographical source of a product, they are treated as signs in the public domain. Accordingly, as a general rule, they cannot be monopolized by a single enterprise. In the context of the LPM: the general principle described above applies. Unless they have established themselves as marks for the products or services concerned, signs in the public domain are excluded from protection (absolute reason for exclusion, Article 2.1). The same applies if the sign is liable to mislead or is contrary to the law in force (Article 2 (c) and (d)). Thus, indications of source can be registered as trademarks when they have established themselves as marks for the products or services concerned (ATF 117 II 324 “VALSER” mineral water). If the mark has established itself abroad, in the country to which the indication of source relates, the mark is registered in Switzerland (ATF 100 Ib 351 “HAACHT”). The same applies when the foreign geographical name has been entered in the trademark register of the country of origin, provided that the mark does not mislead the public as to the source of the products or services (ATF 117 327 “MONTPARNASSE”). In the context of the Ordinance on PAOs and PGIs, the holder of a prior mark may object to the proposed registration of a PAO/PGI if it would jeopardize his mark. If his objection is accepted, the appellation of origin or geographical indication may not be registered. If the objection is rejected, the PAO/PGI will be registered and the holder of the mark may continue to use it (simultaneously with the appellation of origin or geographical indication) provided, however, that he meets the criteria laid down for the use of the appellation of origin or geographical indication. This rule does not apply to well-known or reputable marks which have been used for a long time (Articles 10 and 11).]

In the context of the Ordinance on PAOs and PGIs, protection of geographical indications is obtained from the Federal Agriculture Office (hereinafter “the Office”) of the Department (Ministry) of the Economy, which examines applications and processes the registration (Articles 5 sq.). In the context of the Ordinance on wine, protection is obtained from the cantonal authorities. The cantons define the use of appellations of origin and indications of source on the understanding that the federal provisions of the LAgr and the Ordinance on wine are also respected. 14 They keep an inventory of their appellations and indications of source and make it known to the Office, which maintains a list of protected wine designations. This list is published periodically (Articles 10 to 13).

In the context of the Ordinance on PAOs and PGIs, the procedures which lead to the recognition of a geographical indication are based on the initiative of a private group (composed of producers and/or processors and representative of the product). Thus, the applicant may not be a person or a private company. In the case of a PAO, for example, the group must consist of all the trade associations involved in the production, processing and preparation of the product. The product preparation phase ends at the stage in which the product is allowed to bear the name of the PAO. Since in the case of a geographical indication it is sufficient for just one of the production phases to take place in the defined area, the group does not necessarily have to consist of all the various trade associations (Articles 5 and 6). As far as wine is concerned, the initiative is generally shared by the trade, on the one hand, and the canton, on the other. There is not any application for recognition as such.

In the context of the Ordinance on PAOs and PGIs, the Office charges fees for examining the registration application and for registration. These fees are calculated on the basis of the time required. If there is an objection to a proposed registration, the Office will also charge a fee for examining the objection (Article 15 and Annex to the Ordinance). In the context of the LPM, there is no fee, the protection being automatic provided the geographical indication fulfils the conditions laid down by the law (Article 47, LPM). On the other hand, if the indication is registered as an “established mark” (individual mark, guarantee mark or collective mark), there is a fee of SwF 800 for two classes of products.

This question is not entirely clear. Does it mean whether it is sufficient to indicate the geographical name? What are the possible “purely” geographical criteria to which the question refers? The precise meaning of the word “purely” is difficult to grasp. All the criteria listed in the reply to question 10 above relate to the geographical origin of the product. With respect to the procedure for the recognition of PAOs and PGIs, for example, the answer is yes in the sense that the quality, reputation, natural and human factors and source of the products using these geographical indications are linked to their geographical origin. Criteria such as reputation or human factors express the link with the place of origin. According to the definition of a PAO in the Ordinance on PAOs and PGIs, for example, there must be an objective and very close link (“essentially” or “exclusively”) between the quality of the product and its geographical origin in the broad sense of the term, i.e. the human and natural factors (or the soil). (N.B. In the LPM, it is nevertheless possible for a geographical indication to be used and registered as a trademark if its use is clearly whimsical and there is no chance of anyone being misled as to the true source (e.g. “Matterhorn” for bananas). In this particular case, however, the name does not meet the requirements of Article 47 of the LPM; accordingly, it is not a protected geographical indication within the meaning of Articles 22 sq. of the TRIPS Agreement, but a mere trademark).

[Answer 10: The following criteria may be taken into consideration: 10.1 Under the LPM: The source of a product is determined by the place of manufacture or by the source of the basic materials or components used. Additional conditions may be imposed, such as the observance of customary or locally prescribed manufacturing principles or quality requirements (Articles 48.1 and 48.2, LPM). In each specific case, the criteria must be defined in terms of their influence on the reputation of the products (Article 48.3, LPM). Thus, the LPM does not make any terminological distinction between an indication of source and an appellation of origin. However, it covers the concept of a “qualified” indication of source, i.e. any reference to a place which enjoys a special reputation for the products in question. The characteristics of the product must be due to the geographical environment of a specific country, region or place (natural and/or human factors). All products from the geographical area are entitled to the same system of protection under the LPM (e.g. “Swiss” for chocolate or “Geneva” for watches, “Adelbodner” for mineral water, Langenthal porcelain, St-Gall embroidery). The source of a service is determined by one of the following criteria: the registered office of the service provider, the nationality of the persons who effectively control the commercial policy and management, or the domicile of the persons who effectively control the commercial policy and management. Further conditions may be imposed, such as observance of the customary or prescribed principles for the provision of the services in question or a traditional link between the service provider and the source country (Article 49, LPM). Specific criteria are laid down. For example, for the geographical indication “Swiss made” for watches: Swiss movement, encasement and final inspection in Switzerland (Article 1(a), “Swiss made” Ordinance). 10.2 Under the Ordinance on PAOs and PGIs: The criteria to be met for a PAO are as follows: agricultural product or processed agricultural product originating in a certain region, possession of a certain quality or characteristics essentially or exclusively due to natural and human factors, all the stages (production, processing and preparation) must have taken place in the defined geographical area, and the name of the product must not be generic (Articles 2 and 4). With respect to PGIs: agricultural product or processed agricultural product originating in a certain region; possession of a quality, reputation or other characteristic attributable to that geographical area; at least one of the stages (production, processing or preparation) must have taken place in the defined area; the name of the product must not be generic (Articles 3 and 4). A “generic” name is a name which, although it relates to the place where the product was originally produced or marketed, has become a common name for that product. To establish whether a name has become generic, account is taken of the views of the producers and consumers, especially in its region of origin, and those of the cantonal authorities (Article 4). According to the Ordinance on PAOs and PGIs, a name must designate a single product and not a group of products (e.g. the expression “authentic products of the region of Enhaut”, in the Canton of Vaud, could not be registered as a PAO or PGI). In this case a trademark is more effective (collective mark (Article 22, LPM) or guarantee mark (Article 21, LPM)). 10.3 According to the Ordinance on wine: See the criteria listed in the three definitions (AO, RAO and IS) under reply 8.3 to question 8 above.]

In the context of the Ordinance on PAOs and PGIs, the application must include, in particular, the following: the name of the applicant group and evidence of its representativeness, the appellation of origin or geographical indication to be registered, evidence that the name is not generic, evidence that the product comes from the geographical area (historical record and traceability 15), evidence of the link with the geographical environment or geographical origin, and a description of authentic and unvarying local methods, if any, together with the specification. The latter must include the following particulars: the name of the product, the boundaries of the geographical area, a description of the product and the method of obtaining it, the name of a designated certification (inspection) body and details of the labelling (Articles 6 and 7).

See reply 10.2 to question 10 above.

[Answer 10: The following criteria may be taken into consideration: 10.1 Under the LPM: The source of a product is determined by the place of manufacture or by the source of the basic materials or components used. Additional conditions may be imposed, such as the observance of customary or locally prescribed manufacturing principles or quality requirements (Articles 48.1 and 48.2, LPM). In each specific case, the criteria must be defined in terms of their influence on the reputation of the products (Article 48.3, LPM). Thus, the LPM does not make any terminological distinction between an indication of source and an appellation of origin. However, it covers the concept of a “qualified” indication of source, i.e. any reference to a place which enjoys a special reputation for the products in question. The characteristics of the product must be due to the geographical environment of a specific country, region or place (natural and/or human factors). All products from the geographical area are entitled to the same system of protection under the LPM (e.g. “Swiss” for chocolate or “Geneva” for watches, “Adelbodner” for mineral water, Langenthal porcelain, St-Gall embroidery). The source of a service is determined by one of the following criteria: the registered office of the service provider, the nationality of the persons who effectively control the commercial policy and management, or the domicile of the persons who effectively control the commercial policy and management. Further conditions may be imposed, such as observance of the customary or prescribed principles for the provision of the services in question or a traditional link between the service provider and the source country (Article 49, LPM). Specific criteria are laid down. For example, for the geographical indication “Swiss made” for watches: Swiss movement, encasement and final inspection in Switzerland (Article 1(a), “Swiss made” Ordinance). 10.2 Under the Ordinance on PAOs and PGIs: The criteria to be met for a PAO are as follows: agricultural product or processed agricultural product originating in a certain region, possession of a certain quality or characteristics essentially or exclusively due to natural and human factors, all the stages (production, processing and preparation) must have taken place in the defined geographical area, and the name of the product must not be generic (Articles 2 and 4). With respect to PGIs: agricultural product or processed agricultural product originating in a certain region; possession of a quality, reputation or other characteristic attributable to that geographical area; at least one of the stages (production, processing or preparation) must have taken place in the defined area; the name of the product must not be generic (Articles 3 and 4). A “generic” name is a name which, although it relates to the place where the product was originally produced or marketed, has become a common name for that product. To establish whether a name has become generic, account is taken of the views of the producers and consumers, especially in its region of origin, and those of the cantonal authorities (Article 4). According to the Ordinance on PAOs and PGIs, a name must designate a single product and not a group of products (e.g. the expression “authentic products of the region of Enhaut”, in the Canton of Vaud, could not be registered as a PAO or PGI). In this case a trademark is more effective (collective mark (Article 22, LPM) or guarantee mark (Article 21, LPM)). 10.3 According to the Ordinance on wine: See the criteria listed in the three definitions (AO, RAO and IS) under reply 8.3 to question 8 above.]

Yes (see the reply to question 23 above).

[Answer 23: See reply 10.2 to question 10 above.]

In the context of the Ordinance on PAOs and PGIs, the application to register a PAO or a PGI may be opposed. The complaint must be sent to the Office, in writing, within three months of the date of publication of the registration application. Registration may be opposed on the following grounds: the name does not satisfy the conditions laid down in the Ordinance; the name is a generic one; the group is not representative or the proposed registration would jeopardize a well-known or reputable, entirely or partly homonymous name or trademark which has been in use for a long time. The Office decides whether or not the complaint is valid (Articles 10 and 11). For this purpose, it may consult a committee of experts (the PAO and PGI Commission), as well as the cantonal and federal authorities (for example, the Institute when the complaint is based on the priority and renown of a prior mark). Its decision may be appealed to the Appeals Commission of the Federal Department (Ministry) of the Economy and, in the last instance, to the Federal Tribunal (Supreme Court) (Article 11).

In the context of the Ordinance on PAOs and PGIs, in addition to the cantons, anyone who can show that he has a legitimate interest can oppose the registration of a PAO or PGI (Article 10.1). In the context of the LPM, disputes concerning indications of source must be brought before the courts. Moreover, the holder of a prior mark containing an indication of source may also oppose a new registration if it is identical - for identical products or services or for similar products or services where there is a risk of the consumer being misled, or if it is similar - for identical or similar products where there is a risk of the consumer being misled (Article 31).

Switzerland has concluded, for example, several bilateral treaties with Czechoslovakia (taken over by the Czech Republic and Slovakia), Germany, France, Hungary, Portugal and Spain. 16 These treaties are structured as follows: • Treaty proper (provisions on rights and obligations, scope and extent of protection, homonymous indications, transitional, institutional and final provisions); • a protocol supplementing or refining the application of certain provisions of the treaty; • an Annex A and an Annex B containing the negotiated list of geographical indications; • in the case of Switzerland, the list of geographical indications has so far been structured as follows: • Wines: French-speaking Swiss cantons; Eastern Swiss cantons; other Swiss cantons; • food and agriculture: bakery wares, beer, comestibles, fish, meat, horticultural products, preserves, dairy produce, mineral water, spirits, tobacco; • industrial products: glass and porcelain, industrial arts products, machines and hardware, paper articles, games, toys and musical instruments, pottery, stones, earths, textile products. These treaties and their lists represent the mutual recognition of geographical indications and the resulting protection. Irrespective of the requirements of the bilateral treaties, the practice of the Institute is quite strict. A sign is apt to mislead when it contains a geographical indication, alone or combined with other elements, which leads the consumer to believe that the product comes from the country to which the indication relates, whereas in reality it does not (ATF of 25 August 1995 “San Francisco 49ers”). The assessment is made according to the circumstances in each particular case. The criteria which determine the assessment include: • The extent to which the word is well-known as a geographical indication; • an effective or easily identifiable link between the geographical indication and any additional indications contained in the mark that might increase or reduce the risk of the public being misled; • the products or services in question. Where necessary, corrections are demanded. Any misleading correction is rejected (e.g. a correction such as “Tipo Milano, Made in Switzerland” is considered to be misleading).

[Answer 52: Bilateral agreements on indications of source: - Treaty of 7 March 1967 between the Swiss Confederation and the Federal Republic of Germany on the protection of indications of source and other geographical names, entered into force on 30 August 1969 (RS 0.232.111.191.36); - Treaty of 9 April 1974 between the Swiss Confederation and the Spanish State on the protection of indications of source, appellations of origin and similar names, entered into force on 10 March 1976 (RS 0.232.111.193.32); - Treaty of 14 May 1974 between the Swiss Confederation and the French Republic on the protection of indications of source, appellations of origin and other geographical names, entered into force on 10 October 1975 (RS 0.232.111.193.49); - Treaty of 14 December 1979 between the Swiss Confederation and the Hungarian People’s Republic on the protection of indications of source, appellations of origin and other geographical names, entered into force on 14 August 1981 (RS 0.232.111.194.18); - Treaty of 16 September 1977 between the Swiss Confederation and the Portuguese Republic on the protection of indications of source, appellations of origin and similar names, entered into force on 14 May 1980 (RS 0.232.111.196.54); - Treaty of 16 November 1973 between the Swiss Confederation and the Czechoslovak Socialist Republic on the protection of indications of source, appellations of origin and other geographical names, entered into force on 14 January 1976 (RS 0.232.111.197.41). (N.B. The Treaty has remained in force for the Czech Republic following an exchange of notes on 24 February 1994; the same applies to the Slovak Republic following an exchange of notes on 13 October/25 November 1994.)]

28.1 The protection provided for a geographical indication is, by definition and under Swiss law, indefinite in duration. 28.2 For agricultural products and processed agricultural products, it is expressly stated that appellations of origin and geographical indications cannot, once registered, become generic (Article 16.3, LAgr). 28.3 In the context of the LPM, it is protected, as an indication of source, against any unfair and misleading use as long as the interested circles regard it as a reference to the source of products or services (Article 47.2, LPM). 28.4 When the geographical indication is registered as an “established mark” (individual mark, guarantee mark or collective mark), the protection is for ten years, renewable for further ten-year periods, against payment of a fee (Article 10, LPM).

The question has no relevance to the protected geographical indications described in replies 28.1, 28.2 and 28.3 to question 28 above. For situations in which protection under trademark law is invoked, see reply 28.4 to question 28 above.

[Answer 28: 28.1 The protection provided for a geographical indication is, by definition and under Swiss law, indefinite in duration. 28.2 For agricultural products and processed agricultural products, it is expressly stated that appellations of origin and geographical indications cannot, once registered, become generic (Article 16.3, LAgr). 28.3 In the context of the LPM, it is protected, as an indication of source, against any unfair and misleading use as long as the interested circles regard it as a reference to the source of products or services (Article 47.2, LPM). 28.4 When the geographical indication is registered as an “established mark” (individual mark, guarantee mark or collective mark), the protection is for ten years, renewable for further ten-year periods, against payment of a fee (Article 10, LPM).]

No, for the protected geographical indications described above (replies 28.1 to 28.3 to question 28 above). When the geographical indication is registered as an “established mark” (individual mark, guarantee mark or collective mark), continuous non-use for a period of five years leads to the forfeiture of the mark, unless the holder can give a good reason for the non-use (Article 12, LPM).

[Answer 28: 28.1 The protection provided for a geographical indication is, by definition and under Swiss law, indefinite in duration. 28.2 For agricultural products and processed agricultural products, it is expressly stated that appellations of origin and geographical indications cannot, once registered, become generic (Article 16.3, LAgr). 28.3 In the context of the LPM, it is protected, as an indication of source, against any unfair and misleading use as long as the interested circles regard it as a reference to the source of products or services (Article 47.2, LPM). 28.4 When the geographical indication is registered as an “established mark” (individual mark, guarantee mark or collective mark), the protection is for ten years, renewable for further ten-year periods, against payment of a fee (Article 10, LPM).]

No. Moreover, in the context of the Ordinance on PAOs and PGIs, appellations of origin and geographical indications cannot be used as generic names and, once registered, cannot become generic. An unregistered geographical indication can become generic, but only the courts can establish this (the conditions for establishing the generic nature of an indication of source are extremely strict). In accordance with a long line of precedents, anyone alleging that an indication of source has become a generic name must furnish satisfactory proof. If there is any doubt, the term is presumed to be an indication of source.

In the context of the Ordinance on PAOs and PGIs, the use of appellations of origin and geographical indications is monitored by a certification body (Article 18). This body may be private or public but must be accredited in accordance with European standard 45 011 (general criteria concerning certification bodies that undertake product certification) (Article 19). Where wine is concerned, the RAO is not based on an application but on a decision by the canton together with the joint-trade organization. The cantons are then responsible for the necessary monitoring. As a rule, a RAO commission is set up. In the context of the LPM (indications of source), it is the associations themselves, according to the product and the circumstances, that do the monitoring. Consumer organizations may also perform this function. If the geographical indication has established itself as a mark and been registered as a collective or guarantee mark, then the holder of the mark will be responsible for monitoring its use. This function, whose procedures are laid down in the regulations, may also be delegated to a third party (Articles 23 to 26).

In the context of the Ordinance on PAOs and PGIs, see the reply to question 32 above. Even a public certification body must be accredited in accordance with the Ordinance of 17 June 1996 on accreditation and appointment (Article 19.1). For wine, see the reply to question 32 above.

[Answer 32: In the context of the Ordinance on PAOs and PGIs, the use of appellations of origin and geographical indications is monitored by a certification body (Article 18). This body may be private or public but must be accredited in accordance with European standard 45 011 (general criteria concerning certification bodies that undertake product certification) (Article 19). Where wine is concerned, the RAO is not based on an application but on a decision by the canton together with the joint-trade organization. The cantons are then responsible for the necessary monitoring. As a rule, a RAO commission is set up. In the context of the LPM (indications of source), it is the associations themselves, according to the product and the circumstances, that do the monitoring. Consumer organizations may also perform this function. If the geographical indication has established itself as a mark and been registered as a collective or guarantee mark, then the holder of the mark will be responsible for monitoring its use. This function, whose procedures are laid down in the regulations, may also be delegated to a third party (Articles 23 to 26).]

In the context of the Ordinance on PAOs and PGIs, there is no provision that allows for the possibility of requesting the termination of a geographical indication based on non-use. On the other hand, when the criteria defined in the application are no longer satisfied, the following remedies, for example, are available: • For PAOs and PGIs, the certification bodies may notify the Office and the competent cantonal chemists of irregularities detected during monitoring (Article 20, PAO/PGI Ordinance). The cantons are responsible for monitoring the use of protected names within the framework of the powers assigned to them under the foodstuffs legislation (Article 21.2). • Law on foodstuffs: the administrative measures of the cantonal chemist (responsible for monitoring the use of protected names within the framework of the powers assigned to him under the foodstuffs legislation) include challenging the goods if they are misleadingly described and deciding whether they may be used, with or without a fee, disposed of by the interested parties or confiscated. Moreover, the cantonal chemist must report violations to the public prosecutor. In less serious cases, instead of reporting the violator he may give him a warning. The reporting of a violation may lead to penalties (short term of imprisonment or fine). In the context of the LPM, there are two possibilities: • Yes, if the geographical indication is registered as an “established mark” (for example, as a collective mark or a guarantee mark): after five years of continuous non-use (Article 12.1) or for repeated use of the mark in infringement of the rules, without the holder intervening. The judge gives the holder a time-limit within which to remedy the situation. If the time-limit expires without corrective action having been taken, the mark is cancelled (Article 26). • No, if the indication of source is protected as such: there is not (as with the Ordinance on PAOs and PGIs) any provision for requesting the termination of a geographical indication based on non-use. As the LPM does not require registration, we cannot know for certain whether an indication of source is no longer being used for a particular product. As a rule, when we negotiate bilateral treaties, we ask the interested circles for their lists of indications of source. It is the responsibility of the trade groups to draw up such a list. The fact that a name does not appear on their list of proposed names could be an indication – but not conclusive evidence – that the product is no longer being manufactured in that geographical area or that the group in question does not wish to use that indication for that product. However, even in these instances, the geographical indication cannot be appropriated by persons not forming part of the region concerned if there is a risk of the consumer being misled, nor be monopolized as a trademark.

In the context of PAOs and PGIs, prosecutions for illegal use are initiated on receipt of a complaint, but ex officio if the offender is making a business of it (Article 172, LAgr). When the criteria initially defined in the PAO or PGI application are no longer satisfied, the group may change the specification. Such changes are subject to the same procedure as registrations (see reply to question 23 above). See reply to question 34. In the context of the LPM, see also the reply to question 34.

[Answer 23: [Answer 10: The following criteria may be taken into consideration: 10.1 Under the LPM: The source of a product is determined by the place of manufacture or by the source of the basic materials or components used. Additional conditions may be imposed, such as the observance of customary or locally prescribed manufacturing principles or quality requirements (Articles 48.1 and 48.2, LPM). In each specific case, the criteria must be defined in terms of their influence on the reputation of the products (Article 48.3, LPM). Thus, the LPM does not make any terminological distinction between an indication of source and an appellation of origin. However, it covers the concept of a “qualified” indication of source, i.e. any reference to a place which enjoys a special reputation for the products in question. The characteristics of the product must be due to the geographical environment of a specific country, region or place (natural and/or human factors). All products from the geographical area are entitled to the same system of protection under the LPM (e.g. “Swiss” for chocolate or “Geneva” for watches, “Adelbodner” for mineral water, Langenthal porcelain, St-Gall embroidery). The source of a service is determined by one of the following criteria: the registered office of the service provider, the nationality of the persons who effectively control the commercial policy and management, or the domicile of the persons who effectively control the commercial policy and management. Further conditions may be imposed, such as observance of the customary or prescribed principles for the provision of the services in question or a traditional link between the service provider and the source country (Article 49, LPM). Specific criteria are laid down. For example, for the geographical indication “Swiss made” for watches: Swiss movement, encasement and final inspection in Switzerland (Article 1(a), “Swiss made” Ordinance). 10.2 Under the Ordinance on PAOs and PGIs: The criteria to be met for a PAO are as follows: agricultural product or processed agricultural product originating in a certain region, possession of a certain quality or characteristics essentially or exclusively due to natural and human factors, all the stages (production, processing and preparation) must have taken place in the defined geographical area, and the name of the product must not be generic (Articles 2 and 4). With respect to PGIs: agricultural product or processed agricultural product originating in a certain region; possession of a quality, reputation or other characteristic attributable to that geographical area; at least one of the stages (production, processing or preparation) must have taken place in the defined area; the name of the product must not be generic (Articles 3 and 4). A “generic” name is a name which, although it relates to the place where the product was originally produced or marketed, has become a common name for that product. To establish whether a name has become generic, account is taken of the views of the producers and consumers, especially in its region of origin, and those of the cantonal authorities (Article 4). According to the Ordinance on PAOs and PGIs, a name must designate a single product and not a group of products (e.g. the expression “authentic products of the region of Enhaut”, in the Canton of Vaud, could not be registered as a PAO or PGI). In this case a trademark is more effective (collective mark (Article 22, LPM) or guarantee mark (Article 21, LPM)). 10.3 According to the Ordinance on wine: See the criteria listed in the three definitions (AO, RAO and IS) under reply 8.3 to question 8 above.]]

[Answer 34: In the context of the Ordinance on PAOs and PGIs, there is no provision that allows for the possibility of requesting the termination of a geographical indication based on non-use. On the other hand, when the criteria defined in the application are no longer satisfied, the following remedies, for example, are available: • For PAOs and PGIs, the certification bodies may notify the Office and the competent cantonal chemists of irregularities detected during monitoring (Article 20, PAO/PGI Ordinance). The cantons are responsible for monitoring the use of protected names within the framework of the powers assigned to them under the foodstuffs legislation (Article 21.2). • Law on foodstuffs: the administrative measures of the cantonal chemist (responsible for monitoring the use of protected names within the framework of the powers assigned to him under the foodstuffs legislation) include challenging the goods if they are misleadingly described and deciding whether they may be used, with or without a fee, disposed of by the interested parties or confiscated. Moreover, the cantonal chemist must report violations to the public prosecutor. In less serious cases, instead of reporting the violator he may give him a warning. The reporting of a violation may lead to penalties (short term of imprisonment or fine). In the context of the LPM, there are two possibilities: • Yes, if the geographical indication is registered as an “established mark” (for example, as a collective mark or a guarantee mark): after five years of continuous non-use (Article 12.1) or for repeated use of the mark in infringement of the rules, without the holder intervening. The judge gives the holder a time-limit within which to remedy the situation. If the time-limit expires without corrective action having been taken, the mark is cancelled (Article 26). • No, if the indication of source is protected as such: there is not (as with the Ordinance on PAOs and PGIs) any provision for requesting the termination of a geographical indication based on non-use. As the LPM does not require registration, we cannot know for certain whether an indication of source is no longer being used for a particular product. As a rule, when we negotiate bilateral treaties, we ask the interested circles for their lists of indications of source. It is the responsibility of the trade groups to draw up such a list. The fact that a name does not appear on their list of proposed names could be an indication – but not conclusive evidence – that the product is no longer being manufactured in that geographical area or that the group in question does not wish to use that indication for that product. However, even in these instances, the geographical indication cannot be appropriated by persons not forming part of the region concerned if there is a risk of the consumer being misled, nor be monopolized as a trademark.]

In the context of the Ordinance on PAOs and PGIs, anyone meeting the criteria laid down in the specification may use the protected appellation of origin or geographical indication. He does not have to be recognized or meet additional criteria or follow additional procedures. Like any user of an appellation of origin or geographical indication, he must entrust the monitoring of the production, processing and preparation of the product to a certification body (Article 18). In the context of the LPM, anyone who fulfils the conditions laid down by this Law may use the indication of source, provided that the conditions of the LPM are fulfilled (see replies 8.1 and 10.1 to questions 8 and 10 above). It should be noted that associations or groups can take responsibility for the monitoring and observance of the rules of production. The degree of coercion varies according to the product and the service, as well the association. When the indication of source is protected as a collective or guarantee mark, users must respect the terms of the rules governing their mark. Where wines are concerned, the cantons establish the conditions of use of appellations of origin. Anyone meeting the criteria laid down in the specification may use the protected appellation of origin or geographical indication.

[Answer 8: The definitions vary according to the different laws and regulations for products and services. 8.1 In the context of the LPM Indication of source (“indication de provenance” – “Herkunftsangabe”): Any reference, direct or indirect, to the geographical source of products or services, including references to properties or quality in relation to the source. Geographical names or signs which are not considered by the circles concerned to be a reference to the source of products or services are not indications of source within the meaning of the LPM (Article 47.1, LPM). • Direct indications of source are precise designations of the geographical source of a product or service: names of places, continents, countries, regions, towns, districts or valleys. • Indirect indications of source do not refer to a particular place or region explicitly but by means of verbal or figurative symbols such as names or well-known representations of mountains, lakes, rivers or monuments of national or international renown, well-known emblems of cities, or names or figurative representations of famous historical personages such as “William Tell”. The following are examples of indirect indications: the New York Statue of Liberty can be clearly interpreted as a reference to the United States; a graphical representation of the Matterhorn is considered to be a reference to Switzerland or Valais, depending on the product concerned. Its presence in a mark, in verbal or graphic form, imposes a corresponding restriction on the product. See below, reply 8.2 to question 8, for the additional regime for agricultural and processed agricultural products and reply 8.3 for wine-sector products. The LPM applies when the other protection regimes for agricultural products are not invoked. 8.2 In the context of the Ordinance on PAOs and PGIs (agricultural products other than wine, i.e. including spirits)8 : • Protected or registered appellation of origin (PAO or RAO): name of a region or a place used to describe an agricultural product or processed agricultural product originating in that region or place whose quality or characteristics are essentially or exclusively due to a particular geographical environment, with its inherent natural and human factors, and which is produced, processed and prepared within a defined geographical area. Traditional (non-geographical) names of agricultural products which fulfil the aforementioned conditions can be registered as appellations of origin (Article 2). • Protected geographical indication (PGI): name of a region or a place used to describe an agricultural product or processed agricultural product originating in that region or place which possesses a specific quality, reputation or other characteristics attributable to that geographical origin and is produced, processed or prepared within a defined geographical area. (Thus the requirements for the PGI are less restrictive than those for the PAO) (Article 3). 8.3 In the context of the Ordinance on wine (entry into force 1 January 1999): • Appellation of origin: designates grapes, musts or wines of recognized quality from a geographically defined area such as a canton, cantonal region, commune, locality, chateau or domaine. Wines with an appellation of origin may only come from grapes harvested in the geographical area concerned which fulfil the conditions specified for category 1 (natural minimum sugar content by batch and limited production per unit area).9 The cantons define the use of appellations of origin. They determine the production area and the authorized assemblages (Article 10). • Registered appellation of origin: designates grapes, musts and wines of recognized quality which fulfil the conditions laid down for the appellation of origin and, moreover, meet the additional requirements established by the canton, including at least the following: delimitation of the wine-growing area; varieties; methods of cultivation; minimum natural sugar content; maximum yield per unit area; vinification methods; analysis and organoleptic examination (Article11). • A registered appellation of origin may not at the same time be an appellation of origin as described above. • Indication of source (“indication de provenance” – “Herkunftsbezeichnung”): designates grapes, musts and wines from a geographically defined area. Indication of source is taken to mean the name of the region, or part thereof if it extends over more than one canton, or a traditional designation that refers to a geographical area. Products with an indication of source may only come from grapes harvested in the geographical area concerned which fulfil the conditions laid down for category 2 (minimum natural sugar content by batch lower than for category 1) (Article 12).]

[Answer 10: The following criteria may be taken into consideration: 10.1 Under the LPM: The source of a product is determined by the place of manufacture or by the source of the basic materials or components used. Additional conditions may be imposed, such as the observance of customary or locally prescribed manufacturing principles or quality requirements (Articles 48.1 and 48.2, LPM). In each specific case, the criteria must be defined in terms of their influence on the reputation of the products (Article 48.3, LPM). Thus, the LPM does not make any terminological distinction between an indication of source and an appellation of origin. However, it covers the concept of a “qualified” indication of source, i.e. any reference to a place which enjoys a special reputation for the products in question. The characteristics of the product must be due to the geographical environment of a specific country, region or place (natural and/or human factors). All products from the geographical area are entitled to the same system of protection under the LPM (e.g. “Swiss” for chocolate or “Geneva” for watches, “Adelbodner” for mineral water, Langenthal porcelain, St-Gall embroidery). The source of a service is determined by one of the following criteria: the registered office of the service provider, the nationality of the persons who effectively control the commercial policy and management, or the domicile of the persons who effectively control the commercial policy and management. Further conditions may be imposed, such as observance of the customary or prescribed principles for the provision of the services in question or a traditional link between the service provider and the source country (Article 49, LPM). Specific criteria are laid down. For example, for the geographical indication “Swiss made” for watches: Swiss movement, encasement and final inspection in Switzerland (Article 1(a), “Swiss made” Ordinance). 10.2 Under the Ordinance on PAOs and PGIs: The criteria to be met for a PAO are as follows: agricultural product or processed agricultural product originating in a certain region, possession of a certain quality or characteristics essentially or exclusively due to natural and human factors, all the stages (production, processing and preparation) must have taken place in the defined geographical area, and the name of the product must not be generic (Articles 2 and 4). With respect to PGIs: agricultural product or processed agricultural product originating in a certain region; possession of a quality, reputation or other characteristic attributable to that geographical area; at least one of the stages (production, processing or preparation) must have taken place in the defined area; the name of the product must not be generic (Articles 3 and 4). A “generic” name is a name which, although it relates to the place where the product was originally produced or marketed, has become a common name for that product. To establish whether a name has become generic, account is taken of the views of the producers and consumers, especially in its region of origin, and those of the cantonal authorities (Article 4). According to the Ordinance on PAOs and PGIs, a name must designate a single product and not a group of products (e.g. the expression “authentic products of the region of Enhaut”, in the Canton of Vaud, could not be registered as a PAO or PGI). In this case a trademark is more effective (collective mark (Article 22, LPM) or guarantee mark (Article 21, LPM)). 10.3 According to the Ordinance on wine: See the criteria listed in the three definitions (AO, RAO and IS) under reply 8.3 to question 8 above.]

In the context of PAOs and PGIs: the group requesting recognition is not the “owner” of the name but only a user, like anyone else who meets the specification. The group must be representative. Thus, a PAO/PGI may not be used to impose a method employed by a minority. Representativeness is examined in relation to each trade association, and both the number of enterprises or producers concerned and their turnover must be taken into account. The dossier submitted by the requesting group must contain the necessary particulars, including the number of producers/processors (Article 6). Monitoring may be arranged through the entity which obtained recognition (the requesting group) by way of a contract concluded between that entity and the certification body, but it may also be carried out directly by the certification body (by way of a contract concluded between the user and the certification body) (Articles 7 and 18).

In the context of the LPM, there are no relevant provisions, the protection of the indication of source being automatic. It is possible for groups – established on the basis of private law – to lay down rules, voluntarily accepted, concerning the use of a geographical indication (the association Chocosuisse, for example). If the geographical name is registered as an “established mark” (individual, collective or guarantee mark), there is a registration fee of SwF 800 for two classes of products. Where PAOs/PGIs are concerned, the contract mentioned in the reply to question 37 above generates costs determined by the parties. It is a question of pecuniary compensation for expenses incurred by the certification body in connection with a private-law contract. There is no provision in the Ordinance concerning a user fee as such. The question of the costs incurred in protecting a PAO/PGI must be settled by the group itself, amongst its members in accordance with the agreed rules and (private-law) contracts. Where wines are concerned and according to the canton, a fee is payable for monitoring, but not for the use of the geographical indication as such.

[Answer 37: In the context of PAOs and PGIs: the group requesting recognition is not the “owner” of the name but only a user, like anyone else who meets the specification. The group must be representative. Thus, a PAO/PGI may not be used to impose a method employed by a minority. Representativeness is examined in relation to each trade association, and both the number of enterprises or producers concerned and their turnover must be taken into account. The dossier submitted by the requesting group must contain the necessary particulars, including the number of producers/processors (Article 6). Monitoring may be arranged through the entity which obtained recognition (the requesting group) by way of a contract concluded between that entity and the certification body, but it may also be carried out directly by the certification body (by way of a contract concluded between the user and the certification body) (Articles 7 and 18).]

The question is not very clear. Does it relate to a third party which is not a member of the group that registered the PAO/PGI or to a member of that group? For PAOs and PGIs: see the replies to questions 34 above and 47 below sq. For wines: see the replies to questions 34 above and 47 below sq. In the context of the LPM: if the use of a geographical indication by a third party is disputed, the case must be brought before the judge (see the reply to question 47 sq. below). If the geographical indication has been registered as an “established mark” (individual, collective or guarantee mark), the proceedings that can be taken against the unlawful use of the mark are those described in the reply to question 47 sq. above. The holder of a collective or guarantee mark, for example, may also oppose the registration of another identical or similar mark registered later than his own (Articles 31 to 34).

[Answer 34: In the context of the Ordinance on PAOs and PGIs, there is no provision that allows for the possibility of requesting the termination of a geographical indication based on non-use. On the other hand, when the criteria defined in the application are no longer satisfied, the following remedies, for example, are available: • For PAOs and PGIs, the certification bodies may notify the Office and the competent cantonal chemists of irregularities detected during monitoring (Article 20, PAO/PGI Ordinance). The cantons are responsible for monitoring the use of protected names within the framework of the powers assigned to them under the foodstuffs legislation (Article 21.2). • Law on foodstuffs: the administrative measures of the cantonal chemist (responsible for monitoring the use of protected names within the framework of the powers assigned to him under the foodstuffs legislation) include challenging the goods if they are misleadingly described and deciding whether they may be used, with or without a fee, disposed of by the interested parties or confiscated. Moreover, the cantonal chemist must report violations to the public prosecutor. In less serious cases, instead of reporting the violator he may give him a warning. The reporting of a violation may lead to penalties (short term of imprisonment or fine). In the context of the LPM, there are two possibilities: • Yes, if the geographical indication is registered as an “established mark” (for example, as a collective mark or a guarantee mark): after five years of continuous non-use (Article 12.1) or for repeated use of the mark in infringement of the rules, without the holder intervening. The judge gives the holder a time-limit within which to remedy the situation. If the time-limit expires without corrective action having been taken, the mark is cancelled (Article 26). • No, if the indication of source is protected as such: there is not (as with the Ordinance on PAOs and PGIs) any provision for requesting the termination of a geographical indication based on non-use. As the LPM does not require registration, we cannot know for certain whether an indication of source is no longer being used for a particular product. As a rule, when we negotiate bilateral treaties, we ask the interested circles for their lists of indications of source. It is the responsibility of the trade groups to draw up such a list. The fact that a name does not appear on their list of proposed names could be an indication – but not conclusive evidence – that the product is no longer being manufactured in that geographical area or that the group in question does not wish to use that indication for that product. However, even in these instances, the geographical indication cannot be appropriated by persons not forming part of the region concerned if there is a risk of the consumer being misled, nor be monopolized as a trademark.]

[Answer 47: For PAOs and PGIs (agricultural and processed agricultural products), AOs, RAOs and IS (wines): Criminal provisions: anyone who intentionally makes unlawful use of an appellation of origin or geographical indication protected under Article 16 (agricultural and processed agricultural products) or of an appellation of origin, a registered appellation of origin or an indication of source covered by Article 63 (wines) will, upon a complaint or report being received, be liable to a maximum of one year’s imprisonment or a maximum fine of Sw F 100,000. If the offender is making a business of it, he will be prosecuted ex officio. The penalty is imprisonment or a maximum fine of Sw F 200,000 (Article 172, LAgr). For civil proceedings, see the remedies provided by the LPM. LPM: The possible remedies in civil law are as follows: declaratory action to establish a right or legal relationship (Article 52); actions to enforce performance (i.e. prohibition of an infringement or threat of infringement of a geographical indication), order to desist, order to reveal the source of objects illegally bearing an indication of source (Article 55); confiscation, destruction, etc. (Article 57); provisional measures (Article 59); publication of judgement (Article 60). The criminal penalties are imprisonment for a maximum of one year or a fine of up to Sw F 100,000 for whoever intentionally uses an inaccurate indication of source or a designation liable to be confused with an inaccurate designation, or creates a risk of deception by using a name, address or mark in connection with products or services from another source. If the offender is making a business of it, he will be prosecuted ex officio. The penalty is imprisonment and a fine of up to Sw F 100,000 (Article 64). There is provision for border measures: right of the Federal Customs Administration to notify the beneficiary of an indication of source or a trade or business association with the capacity to institute legal proceedings when there is reason to suspect the imminent importation or exportation of products to which the indication of source has been illegally affixed (Article 70). The holder of the indication of source may request the Federal Customs Administration to detain the goods, for a maximum of ten working days. In exceptional circumstances, the detention period may be extended by a maximum of ten working days. If there is a risk of damage, the Federal Customs Administration may ask for appropriate security. Anyone who improperly requests the detention of goods must make good the injury caused if the provisional measures are unjustified or if they have not been ordered (Articles 70 to 72, LPM, and Articles 54 to 57, OPM). Trade and business associations whose rules and regulations authorize them to protect the economic interests of their members and organizations of national or regional importance with a statutory duty to protect the consumer also have the capacity to bring legal proceedings (Articles 52, 55 and 56). LCD (unfair competition): Civil provisions: Anyone whose goodwill, credit or professional reputation, or business or economic interests are the subject of an act of unfair competition or are threatened therewith may request the judge to prohibit it, if imminent, to put an end to it if it still continues or to declare it illegal if the trouble it has caused persists. In particular, he may request that a rectification be made or that the judgement be communicated to third parties or published. He may also ask for damages (Article 9, LCD). Provisional measures are also possible (Article 14, LCD). Proceedings may be instituted by customers whose economic interests are threatened or injured by an act of unfair competition. Proceedings may also be initiated by trade or business associations whose rules and regulations authorize them to protect the economic interests of their members and organizations of national or regional importance with a statutory duty to protect the consumer (Article 10, actions to prohibit (prevent) or terminate the unfair act). Criminal provisions: Anyone who intentionally engages in unfair competition (for example, gives inaccurate or misleading information on his goods, takes measures liable to give rise to misunderstanding with respect to the goods, etc.) will, upon complaint, be liable to imprisonment or a fine of up to SwF 100,000 (Article 23, LCD). Law on foodstuffs: Criminal provisions: anyone who, intentionally or negligently, gives false or misleading indications on foodstuffs will be liable to a short term of imprisonment or a fine of up to Sw F 20,000 (Article 48 (h)).]

In the context of the LPM (indication of source), the Ordinance on PAOs and PGIs and the Ordinance on wine, authorized users of a geographical indication are not obliged to use it continually. However, in the context of the LPM, the obligation to use exists when the indication of source has been registered as an “established mark” (individual, guarantee or collective mark). If, reckoned from the expiry of the time-limit for raising an objection or, if an objection has been raised, from the end of the opposition procedure, the holder has not used the mark in connection with the registered products or services during a continuous period of five years, he may no longer assert his right to the mark, unless there is a good reason for the non-use (Article 12.1). If the mark is first used or use is resumed after more than five years, the right to the mark is restored with effect from the original priority date, provided that no one has invoked non-use under paragraph 1 before the date of first use or resumption of use (Article 12.2).

The question does not apply to indications of source under the LPM, to PAOs and PGIs under the Ordinance on PAOs/PGIs, or to AOs, RAOs and indications of source under the Ordinance on wine (see the first paragraph of the reply to question 40). For indications of source registered as an “established mark”, see the second paragraph of the reply to question 40.

[Answer 40: In the context of the LPM (indication of source), the Ordinance on PAOs and PGIs and the Ordinance on wine, authorized users of a geographical indication are not obliged to use it continually. However, in the context of the LPM, the obligation to use exists when the indication of source has been registered as an “established mark” (individual, guarantee or collective mark). If, reckoned from the expiry of the time-limit for raising an objection or, if an objection has been raised, from the end of the opposition procedure, the holder has not used the mark in connection with the registered products or services during a continuous period of five years, he may no longer assert his right to the mark, unless there is a good reason for the non-use (Article 12.1). If the mark is first used or use is resumed after more than five years, the right to the mark is restored with effect from the original priority date, provided that no one has invoked non-use under paragraph 1 before the date of first use or resumption of use (Article 12.2).]

In relation to geographical indications (whether in the context of the Ordinance on PAOs and PGIs or in the context of the LPM (indication of source) or the Ordinance on wine), licensing is not authorized; the idea of licensing is contrary to the “philosophy” of protection of the indication of source. Where the indication of source has been registered as an “established mark”, licensing is allowed for the individual mark and the collective mark. It must be entered in the register (Article 27, LPM). As the guarantee mark serves a different purpose (it is not used to distinguish one product or service from another but to perform a guarantee function), it must be accessible to anyone who meets the requirements (Article 21.3, LPM). For the guarantee mark, see the reply to question 17.

[Answer 17: In the context of the Ordinance on PAOs and PGIs: the applicant must be a private group (composed of producers and/or processors and representative of the product) (Article 5). Anyone meeting the requirements laid down in the specification may use the geographical indication without, however, being its owner. In the context of the LPM, the protection for Swiss geographical indications is automatic. It does not require any recognition or registration procedure and neither is there any procedural fee. It should be pointed out that an indication of source can be registered as an “established mark” 12 (whether in the form of an individual mark, a collective mark or a guarantee mark), provided that it has established itself on the market as the distinctive sign of a particular company (see ATF 117 II 324 “VALSER”). The mark is registered with the Institut Fédéral de la Propriété Intellectuelle (Federal Intellectual Property Institute, hereinafter: the Institute) of the Federal Department (Ministry) of Justice and Police. • A guarantee mark is a sign used by several companies under the supervision of its holder, with a view to guaranteeing the quality, geographical origin, method of manufacture or other common characteristics of these companies’ products or services.13 In particular, the following are deemed to be such characteristics: quality (cotton clothing); identical geographical origin (Swiss products, products of a particular canton); similar method of manufacture (organic or free-range products, environmentally friendly products); special technical characteristics (approved products); “fair-trade” products or services . To avoid any conflict of interest, the guarantee mark may not be used by the holder or by a company with which he has close economic ties. For a consideration, the holder must authorize the use of the guarantee mark for products or services with the common characteristics guaranteed by the trademark regulations (Article 21, LPM). The guarantee mark may be used in addition to the registered PAO or PGI if the product concerned includes other essential features not linked to the geographical place; • a collective mark is the sign of a group of production, trade or service companies; it is used to distinguish the products or services of members of the group from those of other companies (Article 22, LPM). Users of both the guarantee mark and the collective mark must observe the corresponding rules. Those for the guarantee mark establish the common characteristics of the products or services guaranteed by the mark; they also provide for effective monitoring of the use of the mark and appropriate penalties (private agreements). The rules for collective marks define the group of companies authorized to use the mark. These rules must not be contrary to public order, morality or the law in force (Article 23). They are approved by the Institute if the conditions of Article 23 are fulfilled. If the rules no longer correspond to the legal requirements and the holder fails to correct them within a time-limit set by the judge, the registration of the mark is cancelled (Article 25). If, contrary to the essential provisions of the rules, the holder tolerates the repeated use of the mark and fails to correct this situation within the time-limit set by the judge, the registration will be cancelled when the time-limit expires (Article 26). The guarantee mark and the collective mark provide protection for a term of ten years, renewable for further ten-year periods.]

In the context of the Ordinance on PAOs and PGIs, for example, under a transitional provision agricultural products and processed agricultural products using an appellation of origin or geographical indication may be manufactured, packaged and labelled in accordance with the old law for two years from the date of publication of the registration. They may be marketed for three years from that date (Article 25). Such transitional provisions are also to be found in the bilateral treaties which Switzerland has concluded with certain countries (see replies to questions 27 above and 52 below).

[Answer 27: Switzerland has concluded, for example, several bilateral treaties with Czechoslovakia (taken over by the Czech Republic and Slovakia), Germany, France, Hungary, Portugal and Spain. 16 These treaties are structured as follows: • Treaty proper (provisions on rights and obligations, scope and extent of protection, homonymous indications, transitional, institutional and final provisions); • a protocol supplementing or refining the application of certain provisions of the treaty; • an Annex A and an Annex B containing the negotiated list of geographical indications; • in the case of Switzerland, the list of geographical indications has so far been structured as follows: • Wines: French-speaking Swiss cantons; Eastern Swiss cantons; other Swiss cantons; • food and agriculture: bakery wares, beer, comestibles, fish, meat, horticultural products, preserves, dairy produce, mineral water, spirits, tobacco; • industrial products: glass and porcelain, industrial arts products, machines and hardware, paper articles, games, toys and musical instruments, pottery, stones, earths, textile products. These treaties and their lists represent the mutual recognition of geographical indications and the resulting protection. Irrespective of the requirements of the bilateral treaties, the practice of the Institute is quite strict. A sign is apt to mislead when it contains a geographical indication, alone or combined with other elements, which leads the consumer to believe that the product comes from the country to which the indication relates, whereas in reality it does not (ATF of 25 August 1995 “San Francisco 49ers”). The assessment is made according to the circumstances in each particular case. The criteria which determine the assessment include: • The extent to which the word is well-known as a geographical indication; • an effective or easily identifiable link between the geographical indication and any additional indications contained in the mark that might increase or reduce the risk of the public being misled; • the products or services in question. Where necessary, corrections are demanded. Any misleading correction is rejected (e.g. a correction such as “Tipo Milano, Made in Switzerland” is considered to be misleading).]

[Answer 52: Bilateral agreements on indications of source: - Treaty of 7 March 1967 between the Swiss Confederation and the Federal Republic of Germany on the protection of indications of source and other geographical names, entered into force on 30 August 1969 (RS 0.232.111.191.36); - Treaty of 9 April 1974 between the Swiss Confederation and the Spanish State on the protection of indications of source, appellations of origin and similar names, entered into force on 10 March 1976 (RS 0.232.111.193.32); - Treaty of 14 May 1974 between the Swiss Confederation and the French Republic on the protection of indications of source, appellations of origin and other geographical names, entered into force on 10 October 1975 (RS 0.232.111.193.49); - Treaty of 14 December 1979 between the Swiss Confederation and the Hungarian People’s Republic on the protection of indications of source, appellations of origin and other geographical names, entered into force on 14 August 1981 (RS 0.232.111.194.18); - Treaty of 16 September 1977 between the Swiss Confederation and the Portuguese Republic on the protection of indications of source, appellations of origin and similar names, entered into force on 14 May 1980 (RS 0.232.111.196.54); - Treaty of 16 November 1973 between the Swiss Confederation and the Czechoslovak Socialist Republic on the protection of indications of source, appellations of origin and other geographical names, entered into force on 14 January 1976 (RS 0.232.111.197.41). (N.B. The Treaty has remained in force for the Czech Republic following an exchange of notes on 24 February 1994; the same applies to the Slovak Republic following an exchange of notes on 13 October/25 November 1994.)]

In general, given that direct and indirect geographical indications indisputably describe the geographical source of a product, they are treated as signs in the public domain. Accordingly, as a general rule, they cannot be monopolized by a single enterprise. In the context of the LPM: the general principle described above applies. Unless they have established themselves as marks for the products or services concerned, signs in the public domain are excluded from protection (absolute reason for exclusion, Article 2.1). The same applies if the sign is liable to mislead or is contrary to the law in force (Article 2 (c) and (d)). Thus, indications of source can be registered as trademarks when they have established themselves as marks for the products or services concerned (ATF 117 II 324 “VALSER” mineral water). If the mark has established itself abroad, in the country to which the indication of source relates, the mark is registered in Switzerland (ATF 100 Ib 351 “HAACHT”). The same applies when the foreign geographical name has been entered in the trademark register of the country of origin, provided that the mark does not mislead the public as to the source of the products or services (ATF 117 327 “MONTPARNASSE”). In the context of the Ordinance on PAOs and PGIs, the holder of a prior mark may object to the proposed registration of a PAO/PGI if it would jeopardize his mark. If his objection is accepted, the appellation of origin or geographical indication may not be registered. If the objection is rejected, the PAO/PGI will be registered and the holder of the mark may continue to use it (simultaneously with the appellation of origin or geographical indication) provided, however, that he meets the criteria laid down for the use of the appellation of origin or geographical indication. This rule does not apply to well-known or reputable marks which have been used for a long time (Articles 10 and 11).

See reply to question 44.

[Answer 44: In general, given that direct and indirect geographical indications indisputably describe the geographical source of a product, they are treated as signs in the public domain. Accordingly, as a general rule, they cannot be monopolized by a single enterprise. In the context of the LPM: the general principle described above applies. Unless they have established themselves as marks for the products or services concerned, signs in the public domain are excluded from protection (absolute reason for exclusion, Article 2.1). The same applies if the sign is liable to mislead or is contrary to the law in force (Article 2 (c) and (d)). Thus, indications of source can be registered as trademarks when they have established themselves as marks for the products or services concerned (ATF 117 II 324 “VALSER” mineral water). If the mark has established itself abroad, in the country to which the indication of source relates, the mark is registered in Switzerland (ATF 100 Ib 351 “HAACHT”). The same applies when the foreign geographical name has been entered in the trademark register of the country of origin, provided that the mark does not mislead the public as to the source of the products or services (ATF 117 327 “MONTPARNASSE”). In the context of the Ordinance on PAOs and PGIs, the holder of a prior mark may object to the proposed registration of a PAO/PGI if it would jeopardize his mark. If his objection is accepted, the appellation of origin or geographical indication may not be registered. If the objection is rejected, the PAO/PGI will be registered and the holder of the mark may continue to use it (simultaneously with the appellation of origin or geographical indication) provided, however, that he meets the criteria laid down for the use of the appellation of origin or geographical indication. This rule does not apply to well-known or reputable marks which have been used for a long time (Articles 10 and 11).]

See replies to questions 44 above and 47 below.

[Answer 44: In general, given that direct and indirect geographical indications indisputably describe the geographical source of a product, they are treated as signs in the public domain. Accordingly, as a general rule, they cannot be monopolized by a single enterprise. In the context of the LPM: the general principle described above applies. Unless they have established themselves as marks for the products or services concerned, signs in the public domain are excluded from protection (absolute reason for exclusion, Article 2.1). The same applies if the sign is liable to mislead or is contrary to the law in force (Article 2 (c) and (d)). Thus, indications of source can be registered as trademarks when they have established themselves as marks for the products or services concerned (ATF 117 II 324 “VALSER” mineral water). If the mark has established itself abroad, in the country to which the indication of source relates, the mark is registered in Switzerland (ATF 100 Ib 351 “HAACHT”). The same applies when the foreign geographical name has been entered in the trademark register of the country of origin, provided that the mark does not mislead the public as to the source of the products or services (ATF 117 327 “MONTPARNASSE”). In the context of the Ordinance on PAOs and PGIs, the holder of a prior mark may object to the proposed registration of a PAO/PGI if it would jeopardize his mark. If his objection is accepted, the appellation of origin or geographical indication may not be registered. If the objection is rejected, the PAO/PGI will be registered and the holder of the mark may continue to use it (simultaneously with the appellation of origin or geographical indication) provided, however, that he meets the criteria laid down for the use of the appellation of origin or geographical indication. This rule does not apply to well-known or reputable marks which have been used for a long time (Articles 10 and 11).]

[Answer 47: For PAOs and PGIs (agricultural and processed agricultural products), AOs, RAOs and IS (wines): Criminal provisions: anyone who intentionally makes unlawful use of an appellation of origin or geographical indication protected under Article 16 (agricultural and processed agricultural products) or of an appellation of origin, a registered appellation of origin or an indication of source covered by Article 63 (wines) will, upon a complaint or report being received, be liable to a maximum of one year’s imprisonment or a maximum fine of Sw F 100,000. If the offender is making a business of it, he will be prosecuted ex officio. The penalty is imprisonment or a maximum fine of Sw F 200,000 (Article 172, LAgr). For civil proceedings, see the remedies provided by the LPM. LPM: The possible remedies in civil law are as follows: declaratory action to establish a right or legal relationship (Article 52); actions to enforce performance (i.e. prohibition of an infringement or threat of infringement of a geographical indication), order to desist, order to reveal the source of objects illegally bearing an indication of source (Article 55); confiscation, destruction, etc. (Article 57); provisional measures (Article 59); publication of judgement (Article 60). The criminal penalties are imprisonment for a maximum of one year or a fine of up to Sw F 100,000 for whoever intentionally uses an inaccurate indication of source or a designation liable to be confused with an inaccurate designation, or creates a risk of deception by using a name, address or mark in connection with products or services from another source. If the offender is making a business of it, he will be prosecuted ex officio. The penalty is imprisonment and a fine of up to Sw F 100,000 (Article 64). There is provision for border measures: right of the Federal Customs Administration to notify the beneficiary of an indication of source or a trade or business association with the capacity to institute legal proceedings when there is reason to suspect the imminent importation or exportation of products to which the indication of source has been illegally affixed (Article 70). The holder of the indication of source may request the Federal Customs Administration to detain the goods, for a maximum of ten working days. In exceptional circumstances, the detention period may be extended by a maximum of ten working days. If there is a risk of damage, the Federal Customs Administration may ask for appropriate security. Anyone who improperly requests the detention of goods must make good the injury caused if the provisional measures are unjustified or if they have not been ordered (Articles 70 to 72, LPM, and Articles 54 to 57, OPM). Trade and business associations whose rules and regulations authorize them to protect the economic interests of their members and organizations of national or regional importance with a statutory duty to protect the consumer also have the capacity to bring legal proceedings (Articles 52, 55 and 56). LCD (unfair competition): Civil provisions: Anyone whose goodwill, credit or professional reputation, or business or economic interests are the subject of an act of unfair competition or are threatened therewith may request the judge to prohibit it, if imminent, to put an end to it if it still continues or to declare it illegal if the trouble it has caused persists. In particular, he may request that a rectification be made or that the judgement be communicated to third parties or published. He may also ask for damages (Article 9, LCD). Provisional measures are also possible (Article 14, LCD). Proceedings may be instituted by customers whose economic interests are threatened or injured by an act of unfair competition. Proceedings may also be initiated by trade or business associations whose rules and regulations authorize them to protect the economic interests of their members and organizations of national or regional importance with a statutory duty to protect the consumer (Article 10, actions to prohibit (prevent) or terminate the unfair act). Criminal provisions: Anyone who intentionally engages in unfair competition (for example, gives inaccurate or misleading information on his goods, takes measures liable to give rise to misunderstanding with respect to the goods, etc.) will, upon complaint, be liable to imprisonment or a fine of up to SwF 100,000 (Article 23, LCD). Law on foodstuffs: Criminal provisions: anyone who, intentionally or negligently, gives false or misleading indications on foodstuffs will be liable to a short term of imprisonment or a fine of up to Sw F 20,000 (Article 48 (h)).]

See reply to question 46 of document IP/C/13.

[Answer 46: See replies to questions 44 above and 47 below.]

For PAOs and PGIs (agricultural and processed agricultural products), AOs, RAOs and IS (wines): Criminal provisions: anyone who intentionally makes unlawful use of an appellation of origin or geographical indication protected under Article 16 (agricultural and processed agricultural products) or of an appellation of origin, a registered appellation of origin or an indication of source covered by Article 63 (wines) will, upon a complaint or report being received, be liable to a maximum of one year’s imprisonment or a maximum fine of Sw F 100,000. If the offender is making a business of it, he will be prosecuted ex officio. The penalty is imprisonment or a maximum fine of Sw F 200,000 (Article 172, LAgr). For civil proceedings, see the remedies provided by the LPM. LPM: The possible remedies in civil law are as follows: declaratory action to establish a right or legal relationship (Article 52); actions to enforce performance (i.e. prohibition of an infringement or threat of infringement of a geographical indication), order to desist, order to reveal the source of objects illegally bearing an indication of source (Article 55); confiscation, destruction, etc. (Article 57); provisional measures (Article 59); publication of judgement (Article 60). The criminal penalties are imprisonment for a maximum of one year or a fine of up to Sw F 100,000 for whoever intentionally uses an inaccurate indication of source or a designation liable to be confused with an inaccurate designation, or creates a risk of deception by using a name, address or mark in connection with products or services from another source. If the offender is making a business of it, he will be prosecuted ex officio. The penalty is imprisonment and a fine of up to Sw F 100,000 (Article 64). There is provision for border measures: right of the Federal Customs Administration to notify the beneficiary of an indication of source or a trade or business association with the capacity to institute legal proceedings when there is reason to suspect the imminent importation or exportation of products to which the indication of source has been illegally affixed (Article 70). The holder of the indication of source may request the Federal Customs Administration to detain the goods, for a maximum of ten working days. In exceptional circumstances, the detention period may be extended by a maximum of ten working days. If there is a risk of damage, the Federal Customs Administration may ask for appropriate security. Anyone who improperly requests the detention of goods must make good the injury caused if the provisional measures are unjustified or if they have not been ordered (Articles 70 to 72, LPM, and Articles 54 to 57, OPM). Trade and business associations whose rules and regulations authorize them to protect the economic interests of their members and organizations of national or regional importance with a statutory duty to protect the consumer also have the capacity to bring legal proceedings (Articles 52, 55 and 56). LCD (unfair competition): Civil provisions: Anyone whose goodwill, credit or professional reputation, or business or economic interests are the subject of an act of unfair competition or are threatened therewith may request the judge to prohibit it, if imminent, to put an end to it if it still continues or to declare it illegal if the trouble it has caused persists. In particular, he may request that a rectification be made or that the judgement be communicated to third parties or published. He may also ask for damages (Article 9, LCD). Provisional measures are also possible (Article 14, LCD). Proceedings may be instituted by customers whose economic interests are threatened or injured by an act of unfair competition. Proceedings may also be initiated by trade or business associations whose rules and regulations authorize them to protect the economic interests of their members and organizations of national or regional importance with a statutory duty to protect the consumer (Article 10, actions to prohibit (prevent) or terminate the unfair act). Criminal provisions: Anyone who intentionally engages in unfair competition (for example, gives inaccurate or misleading information on his goods, takes measures liable to give rise to misunderstanding with respect to the goods, etc.) will, upon complaint, be liable to imprisonment or a fine of up to SwF 100,000 (Article 23, LCD). Law on foodstuffs: Criminal provisions: anyone who, intentionally or negligently, gives false or misleading indications on foodstuffs will be liable to a short term of imprisonment or a fine of up to Sw F 20,000 (Article 48 (h)).

In the context of the Ordinance on PAOs and PGIs, any user may enforce a geographical indication. In the context of the LPM, a declaratory action to establish a right or a legal relationship under the LPM may be brought by anyone who demonstrates a legal interest in such a declaration. An action for the enforcement of performance (termination or prohibition of an act, etc.) may be brought by anyone who suffers or is at risk of suffering an infringement of his right to an indication of source. Proceedings may also be instituted by trade or business associations whose rules and regulations authorize them to protect the economic interests of their members (Articles 52, 55 and 56).

In general, see the description given by the Swiss delegation in document IP/N/6/CHE/1 (checklist on issues of enforcement). The judicial bodies (courts) are mainly responsible for proceedings. Prosecution rests with the cantons alone. In every case, a final cantonal decision can be appealed to the Federal Tribunal. For border measures, see the reply to question 47 above. For a more detailed account of the judicial system and the question of fees, costs, etc., see document IP/N/6/CHE/1.

[Answer 47: For PAOs and PGIs (agricultural and processed agricultural products), AOs, RAOs and IS (wines): Criminal provisions: anyone who intentionally makes unlawful use of an appellation of origin or geographical indication protected under Article 16 (agricultural and processed agricultural products) or of an appellation of origin, a registered appellation of origin or an indication of source covered by Article 63 (wines) will, upon a complaint or report being received, be liable to a maximum of one year’s imprisonment or a maximum fine of Sw F 100,000. If the offender is making a business of it, he will be prosecuted ex officio. The penalty is imprisonment or a maximum fine of Sw F 200,000 (Article 172, LAgr). For civil proceedings, see the remedies provided by the LPM. LPM: The possible remedies in civil law are as follows: declaratory action to establish a right or legal relationship (Article 52); actions to enforce performance (i.e. prohibition of an infringement or threat of infringement of a geographical indication), order to desist, order to reveal the source of objects illegally bearing an indication of source (Article 55); confiscation, destruction, etc. (Article 57); provisional measures (Article 59); publication of judgement (Article 60). The criminal penalties are imprisonment for a maximum of one year or a fine of up to Sw F 100,000 for whoever intentionally uses an inaccurate indication of source or a designation liable to be confused with an inaccurate designation, or creates a risk of deception by using a name, address or mark in connection with products or services from another source. If the offender is making a business of it, he will be prosecuted ex officio. The penalty is imprisonment and a fine of up to Sw F 100,000 (Article 64). There is provision for border measures: right of the Federal Customs Administration to notify the beneficiary of an indication of source or a trade or business association with the capacity to institute legal proceedings when there is reason to suspect the imminent importation or exportation of products to which the indication of source has been illegally affixed (Article 70). The holder of the indication of source may request the Federal Customs Administration to detain the goods, for a maximum of ten working days. In exceptional circumstances, the detention period may be extended by a maximum of ten working days. If there is a risk of damage, the Federal Customs Administration may ask for appropriate security. Anyone who improperly requests the detention of goods must make good the injury caused if the provisional measures are unjustified or if they have not been ordered (Articles 70 to 72, LPM, and Articles 54 to 57, OPM). Trade and business associations whose rules and regulations authorize them to protect the economic interests of their members and organizations of national or regional importance with a statutory duty to protect the consumer also have the capacity to bring legal proceedings (Articles 52, 55 and 56). LCD (unfair competition): Civil provisions: Anyone whose goodwill, credit or professional reputation, or business or economic interests are the subject of an act of unfair competition or are threatened therewith may request the judge to prohibit it, if imminent, to put an end to it if it still continues or to declare it illegal if the trouble it has caused persists. In particular, he may request that a rectification be made or that the judgement be communicated to third parties or published. He may also ask for damages (Article 9, LCD). Provisional measures are also possible (Article 14, LCD). Proceedings may be instituted by customers whose economic interests are threatened or injured by an act of unfair competition. Proceedings may also be initiated by trade or business associations whose rules and regulations authorize them to protect the economic interests of their members and organizations of national or regional importance with a statutory duty to protect the consumer (Article 10, actions to prohibit (prevent) or terminate the unfair act). Criminal provisions: Anyone who intentionally engages in unfair competition (for example, gives inaccurate or misleading information on his goods, takes measures liable to give rise to misunderstanding with respect to the goods, etc.) will, upon complaint, be liable to imprisonment or a fine of up to SwF 100,000 (Article 23, LCD). Law on foodstuffs: Criminal provisions: anyone who, intentionally or negligently, gives false or misleading indications on foodstuffs will be liable to a short term of imprisonment or a fine of up to Sw F 20,000 (Article 48 (h)).]

In the context of the Ordinance on PAOs and PGIs, if the registration application is accepted, the entity responsible for recognition, i.e. the Office, publishes it in the Feuille officiel suisse du commerce, where the final registration is also published. This gazette is published every day, except for Saturdays, Sundays and public holidays.

Yes, see reply to question 47 above. For the new texts see the Annex to this document.

[Answer 47: For PAOs and PGIs (agricultural and processed agricultural products), AOs, RAOs and IS (wines): Criminal provisions: anyone who intentionally makes unlawful use of an appellation of origin or geographical indication protected under Article 16 (agricultural and processed agricultural products) or of an appellation of origin, a registered appellation of origin or an indication of source covered by Article 63 (wines) will, upon a complaint or report being received, be liable to a maximum of one year’s imprisonment or a maximum fine of Sw F 100,000. If the offender is making a business of it, he will be prosecuted ex officio. The penalty is imprisonment or a maximum fine of Sw F 200,000 (Article 172, LAgr). For civil proceedings, see the remedies provided by the LPM. LPM: The possible remedies in civil law are as follows: declaratory action to establish a right or legal relationship (Article 52); actions to enforce performance (i.e. prohibition of an infringement or threat of infringement of a geographical indication), order to desist, order to reveal the source of objects illegally bearing an indication of source (Article 55); confiscation, destruction, etc. (Article 57); provisional measures (Article 59); publication of judgement (Article 60). The criminal penalties are imprisonment for a maximum of one year or a fine of up to Sw F 100,000 for whoever intentionally uses an inaccurate indication of source or a designation liable to be confused with an inaccurate designation, or creates a risk of deception by using a name, address or mark in connection with products or services from another source. If the offender is making a business of it, he will be prosecuted ex officio. The penalty is imprisonment and a fine of up to Sw F 100,000 (Article 64). There is provision for border measures: right of the Federal Customs Administration to notify the beneficiary of an indication of source or a trade or business association with the capacity to institute legal proceedings when there is reason to suspect the imminent importation or exportation of products to which the indication of source has been illegally affixed (Article 70). The holder of the indication of source may request the Federal Customs Administration to detain the goods, for a maximum of ten working days. In exceptional circumstances, the detention period may be extended by a maximum of ten working days. If there is a risk of damage, the Federal Customs Administration may ask for appropriate security. Anyone who improperly requests the detention of goods must make good the injury caused if the provisional measures are unjustified or if they have not been ordered (Articles 70 to 72, LPM, and Articles 54 to 57, OPM). Trade and business associations whose rules and regulations authorize them to protect the economic interests of their members and organizations of national or regional importance with a statutory duty to protect the consumer also have the capacity to bring legal proceedings (Articles 52, 55 and 56). LCD (unfair competition): Civil provisions: Anyone whose goodwill, credit or professional reputation, or business or economic interests are the subject of an act of unfair competition or are threatened therewith may request the judge to prohibit it, if imminent, to put an end to it if it still continues or to declare it illegal if the trouble it has caused persists. In particular, he may request that a rectification be made or that the judgement be communicated to third parties or published. He may also ask for damages (Article 9, LCD). Provisional measures are also possible (Article 14, LCD). Proceedings may be instituted by customers whose economic interests are threatened or injured by an act of unfair competition. Proceedings may also be initiated by trade or business associations whose rules and regulations authorize them to protect the economic interests of their members and organizations of national or regional importance with a statutory duty to protect the consumer (Article 10, actions to prohibit (prevent) or terminate the unfair act). Criminal provisions: Anyone who intentionally engages in unfair competition (for example, gives inaccurate or misleading information on his goods, takes measures liable to give rise to misunderstanding with respect to the goods, etc.) will, upon complaint, be liable to imprisonment or a fine of up to SwF 100,000 (Article 23, LCD). Law on foodstuffs: Criminal provisions: anyone who, intentionally or negligently, gives false or misleading indications on foodstuffs will be liable to a short term of imprisonment or a fine of up to Sw F 20,000 (Article 48 (h)).]

Bilateral agreements on indications of source: - Treaty of 7 March 1967 between the Swiss Confederation and the Federal Republic of Germany on the protection of indications of source and other geographical names, entered into force on 30 August 1969 (RS 0.232.111.191.36); - Treaty of 9 April 1974 between the Swiss Confederation and the Spanish State on the protection of indications of source, appellations of origin and similar names, entered into force on 10 March 1976 (RS 0.232.111.193.32); - Treaty of 14 May 1974 between the Swiss Confederation and the French Republic on the protection of indications of source, appellations of origin and other geographical names, entered into force on 10 October 1975 (RS 0.232.111.193.49); - Treaty of 14 December 1979 between the Swiss Confederation and the Hungarian People’s Republic on the protection of indications of source, appellations of origin and other geographical names, entered into force on 14 August 1981 (RS 0.232.111.194.18); - Treaty of 16 September 1977 between the Swiss Confederation and the Portuguese Republic on the protection of indications of source, appellations of origin and similar names, entered into force on 14 May 1980 (RS 0.232.111.196.54); - Treaty of 16 November 1973 between the Swiss Confederation and the Czechoslovak Socialist Republic on the protection of indications of source, appellations of origin and other geographical names, entered into force on 14 January 1976 (RS 0.232.111.197.41). (N.B. The Treaty has remained in force for the Czech Republic following an exchange of notes on 24 February 1994; the same applies to the Slovak Republic following an exchange of notes on 13 October/25 November 1994.)

• Paris Convention for the Protection of Industrial Property (Stockholm Act, 1967) (RS 0.232.04): the Paris Convention being incorporated in the TRIPS Agreement, there is no point in describing its contents. See, in particular, Articles 1, 10, 10 bis and 10 ter; • Madrid Agreement for the Repression of False or Deceptive Indications of Sources on Goods of Origin (Stockholm Act, 1967) (RS 0.232.111.131): seizure at importation, prohibition of importation, other measures; • Convention of 1 June and 18 July 1951 on the Use of Appellations of Origin and Denominations of Cheeses (Stresa Convention; RS 0.817.142.1). This multilateral agreement requires the contracting parties to do everything to ensure that the principles and terms of the agreement are applied. They undertake to prohibit and repress on their territory the use of appellations of origin, denominations and designations of cheeses contrary to these principles. To this end, Switzerland has adopted relevant provisions in its foodstuffs legislation.