Services from Cyprus
The prohibition is based on a Swiss law that sets rules for the commercial use of the word Swiss and other signs referring to Switzerland, such as the flag. Although BDSwiss has its statutory seat in the tax-friendly canton of Zug in Switzerland, the company cannot demonstrate that it is actually managed from Switzerland. The financial services are mainly carried out from Cyprus, and according to the court the office in Zug is little more than a mailbox that is emptied from time to time. As a result, BDSwiss does not meet the requirements under Swiss law for using the designation Swiss in its name.
Strict law only in Switzerland
This strict Swiss legislation regarding the use of the word Swiss naturally applies only to names used in Switzerland. For the use of the designation Swiss in the EU, one mainly needs to look at the general rules concerning misleading trademark use. In the Netherlands, the company Recticel attempted in 2012 to prohibit the mattress brand Swiss Sense. According to Recticel, the mark Swiss Sense was misleading because the beds do not originate from Switzerland. However, the court rejected the claim.
“The fact that ‘Swiss Sense’ seeks to evoke a ‘Swiss feeling’ of luxury, precision and quality does not mean that the public will think that the mattresses originate from Switzerland or that the provider is Swiss,” the court stated. According to the court, it is not sufficient that a trademark could potentially be misleading; a trademark can only be prohibited if there is actual deception. Recticel was unable to demonstrate this, and therefore the name Swiss Sense was not banned.
Swiss flag
In short, it appears that in the Netherlands—and likely throughout the EU—the Swiss issue is not treated as strictly as it is in Switzerland. However, what does pose significant risks in the EU is the use of the Swiss flag. This is because the use of national flags—or something closely resembling them—is prohibited under the Paris Convention. This treaty also applies in all EU countries. In the aforementioned case, the court therefore informed Swiss Sense that it had to stop using the Swiss flag in its logo.
Bas Kist
Banner photo by Ronnie Schmutz on Unsplash
