Switzerland no longer wants the iconic Matterhorn mountain to appear on the packaging of the chocolate bar Toblerone. So what rights does such a well-known natural phenomenon enjoy?
“The mountain itself has no property or personal rights, but trademark law protects the use of designations of origin,” says intellectual property law expert Pieter-Jan Valgaeren.
The Swiss chocolate bar Toblerone has been produced for years by the American company Mondelēz. However, the production of the bar will move to Slovakia in July, forcing it to adjust the packaging. Because of the move, the product is no longer entirely Swiss. In addition, Swiss law stipulates that the company is no longer allowed to use the national symbol of the mountain in the Toblerone logo.
“The Swiss brand is highly regarded in the world,” explains intellectual property law expert Pieter-Jan Valgaeren in our podcast “The Quarter”. “Just think of the quality of the Swiss army knife or Ricola’s throat lozenges. That is why Switzerland has decided to draw up a strict protection law. For example, suppose you want to attach the Swiss mark to your product, a law from 2017 states that 80 percent of the raw materials must come from Switzerland. For milk and dairy products like Toblerone, that must even be 100 percent.”
“Toblerone is a Swiss brand that wants to profile itself as very Swiss: the name is Swiss, and the logo and shape of the bar are based on the Swiss mountain Matterhorn. But there are limits to how you can use names, logos and shapes.” continues Valgaeren. “European trademark law protects those typical geographical names of origin. Just think of Champagne, Eau de Cologne or the mattentaarten from Geraardsbergen.”
“The mountain has no property or personal rights, but the canton where the Matterhorn is located has protected its name as a trademark. So they can prevent the use of the name in a trademark.”
The protection of designations of origin under trademark law is, therefore, about the link between the product and the region, not about the image or the like in the logo. “Trademark law always starts from consumer protection,” explains Valgaeren. “If it is difficult for the consumer to assess whether a product comes from the linked region, the law already states that you may not use it. If there is no longer any link between the brand name or logo and the place where it is made, as with Toblerone now, you will soon come back from a barren journey.”
“This is how they try to protect those names of origin. But a lot depends on local legislation and historical sensitivities. Just think of the discussions about Hoegaarden beer that would suddenly no longer be brewed in Hoegaarden or Leffe beer that would only be brewed in Leffe until the 1970s. was brewed.”