Fans of the hugely popular show ‘Friends’ will vividly remember how Joey’s eyes widened when he saw a Toblerone chocolate in one of the other character’s bags. The distinctive Matterhorn Mountain on the packaging poking out of the bag, seemingly reflected in the conical structure of the chocolate, immediately brings to Joey’s eyes the happiness one can only feel when one hears the words ‘Swiss Chocolates’.
However, the iconic Matterhorn mountains have recently been removed from the packaging of the chocolates. This change has been brought about due to the application of the Swissness Act, 2017 (‘Act’), which regulates the use of Swiss symbols or labels which associate the products and services with Switzerland. Over the course of years, products originating out of Switzerland have established themselves as premium-quality products. The readers may note Swiss watches, Swiss Knives, and Swiss Chocolates as prime examples; the goods themselves, regardless of the manufacturer, bring to the consumers’ minds a certain level of poche and excellence attached to it. In its essence, the Act ensures that only such products or services which satisfy the conditions set out in the Act can use the symbols associated with Switzerland, such as the Swiss Cross, the Swiss Alps, etc. or can use labels such as ‘Swiss-made’.
Criteria for Swissness:
Under the Act, the general qualifying criteria for foodstuffs[1] includes:
- 80% of the weight of raw materials used in the recipe must come from Switzerland; and,
- Essential processing steps must be undertaken in Switzerland.
Toblerone has been hit by the application of this Act, because of its decision to move the production and manufacturing of its 35 gm and 50 gm chocolates to Slovakia, as a cost-cutting measure. Moving the production out of Switzerland falls foul of the second criteria provided above, and accordingly, these chocolates are not Swiss enough to use the Matterhorn image.
Therefore, representatives of Mondelez International, the company which produces the chocolates have confirmed that the new packaging will include a ‘modernised and streamlined mountain logo that aligns with the geometric and triangular aesthetic.’[2]
Effect on Toblerone?
It is pertinent to note that evocation is a huge factor when understanding consumer psychology. Evocation means looking at a particular thing or a symbol, and associating it with a symbol, event, or thing in the past. One can look at it from the lens of trademarks law- for e.g., the term ‘Haldiram’ in India, on any food outlet, will immediately bring to the consumer’s recollection the delectable food chain, and the reputation that comes along with it. For that matter if any good uses any iconic Indian monument/natural resource/place etc., it will immediately evoke a reference to India (even if the name itself is not used). If an ‘Indianness Act’ similar to the Swissness Act was enforced, the use of such images on the packaging, especially if the product itself is manufactured elsewhere, will also raise similar questions as the ones raised in Toblerone. The Swissness Act, 2017 can be considered in the same vein. While it does not refer to Trademarks per se, it does find its basis in the concept of evocation.
In the case of the Toblerone bars, their packaging has always immediately evoked a reference to Switzerland. Like the author earlier mentioned, whether it is a chocolate connoisseur or not, a person will be attracted to the chocolate because it is a ‘Swiss Chocolate’.
While it can be argued that the change of packaging may act as a disadvantage to Toblerone, as losing the unique selling point of ‘Swissness’ may also lead a loss of consumer base, it can also be argued that the distinctive yellow of Toblerone combined with the manner the term is written, and the shape of the chocolate itself, has acquired significant distinctiveness and goodwill; and the removal of the Matterhorn may not be a pivotal consideration for an average consumer. What remains of the chocolates is the legacy of its shape and taste. Chocolate lovers will still enjoy the bar, even if its heritage value may have decreased. It remains to be seen how the change will affect the brand.
Conclusion:
Nations across the world have endeavoured to provide protection to the goods/services which are exclusively associated with their territories. This is mostly done under laws pertaining to Geographical Indication. However, Switzerland has gone one step beyond such laws, to protect itself from anyone who tries to imping its reputation by enacting laws such as the Act that prevents anyone from using the Swiss emblems, or associate themselves with Switzerland, if they are not associated with the Swiss soil and do not adhere to the Swiss quality.
Therefore, should all countries enforce similar legislations? Will it lead to better products and services? And ultimately, will it lead to the benefit of the consumers- who will have better options and an assurance that the products they buy are authentic? This is the food for thought here.
[The author is an Associate (Trademarks) in IPR practice at Lakshmikumaran & Sridharan Attorneys, New Delhi]
[1] https://www.ige.ch/fileadmin/user_upload/Swissness/e/Flyer_Swissness_en_web.pdf.
[2] https://www.theguardian.com/world/2023/mar/05/matterhorn-mountain-toblerone-packaging-design-switzerland
