Toblerone is an iconic chocolate bar invented in and produced near Bern, the capital of Switzerland, for more than 100 years.
Since 1970, the brand's packaging has included a silhouette of the Matterhorn, one of the highest summits in the Alps and a silhouette of a bear (Bern's mascot), along with the slogan "of Switzerland".
In June 2022, Mondelez announced plans to move part of the production of Toblerone to Slovakia by the end of 2023. It has stated that this was in order to increase output to meet demands and reduce costs.
Mondelez is now changing the design of the cardboard wrapper in response to Switzerland's strict rules on the use of its national symbols and indication of "Swiss" provenance detailed under the "Swissness Act". Mondelez has announced that it is planning to remove the Matterhorn and replace it with a more generic mountain, create a new distinctive typeface and logo inspired by the Toblerone archives, as well as add the signature of Toblerone's founder, Jean Tobler. Crucially, the packaging will now read "established in Switzerland," rather than "of Switzerland."
The "Swissness Act"
The Swiss Federal Act on the Protection of Trade Marks and Indications of Source, also known as the Trade Mark Protection Act or "Swissness Act", was amended in 2013 to introduce stricter measures regarding the use of indicia of Swiss provenance, including national symbols and Swiss crosses. The law came into force on 1 January 2017 and requires food product manufacturers that make use of Swiss branding to show:
- that at least 80 percent of the product's raw materials come from Switzerland. This threshold is increased to 100 percent for milk and dairy products; and
- that the manufacturing process has taken place in Switzerland.
This stricter approach has been welcomed by the Swiss Federal Institute of Intellectual Property (IPI) due to increasing concerns about misuse of Swiss signage damaging the credibility of the reputation of Swiss-made products. The IPI has stated: "The new 'Swissness' legislation [therefore] strengthens protection for the 'Made in Switzerland' designation and the Swiss cross. It helps prevent and curb their misuse, so that the value of the 'Swiss' brand can be preserved in the long term."
What does this mean for brand owners?
Brand owners will need to remain aware of the potential risks to their regulatory compliance and overall branding should they move any of their manufacturing locations to other countries distinct from that of their product's original origin. It is vital to keep up to date with the packaging requirements of each country in which a product is sold and be wary of using claims such as "made in" and "of" if you are not able to provide evidence to substantiate them.
In addition, re-branding a well-known brand is often complex and can lead to intellectual property issues, as well as raise matters of regulatory compliance set out above.
In particular, re-filing updated trademarks can leave brand owners vulnerable to conflict with third parties who have since registered similar marks. Caution should be exercised when re-designing packaging and logos to ensure they do not breach any other company's or person's intellectual property rights. It is also imperative that trademark owners seek out comprehensive clearance searches before commencing a re-brand.
To discuss any of the points raised here or any other queries in relation to product origins and trademark law, please get in touch with Kate Swaine.
Footnotes
[] Bundesgesetz über den Schutz von Marken und Herkunftsangaben (Markenschutzgesetz, MSchG) AS 2015 3631
[] The Swiss Federal Institute of Intellectual Property, 'The Swissness Legislation' (IPI, 2023) accessed on 09.03.2023