The Geographical Trade Mark: A Swiss Innovation Worth Copying?

Abstract

The Swiss legislature found the international protection of Geographical Indications (GIs) to not be satisfactory. To address this problem, it implemented into the “Swissness legislation” – a legislative project to safeguard and preserve the added value of the “Swiss” label for Swiss goods and services, which has been in force since 1 January 2017 – a new type of trade mark: the Geographical Trade Mark (GTM), which may be registered for specific GIs. The legislature expected that GTMs will primarily facilitate the enforcing of the protection of GIs abroad by enabling access to the Madrid System. However, as a result of the adjustments to the GTM which have been needed to fit it into a system designed around distinctive individual marks owned and used by a single commercial entity, its wings have been dramatically clipped: the GTM is largely characterised by the principle of dependence, meaning that a GTM registration requires a pre-existing GI which has already been examined in a registration or a legislative procedure. Although the possibility for owners of GTMs to benefit from the international trade mark framework does exist, the actual potential advantages are rather limited; for example, in the EU the owner of a GTM would get as an “equivalent” a weak EU collective mark.