The Native Digital Asset of Diamante ‘DIAM’ is a utility-based token which has received a no-action letter from FINMA. According to the FINMA guidelines, payment tokens are tokens that are actually or intentionally accepted by the organizer as a means of payment for the purchase of goods or services and/or for the transfer of money and values. The purpose of the means of payment must be the main function of the tokens and not merely an ancillary service to the usage function (see Art. 2 para. 2 letter a no. 3 Money Laundering Ordinance [MLO; SR 955.01], FINMA-Circ. 2011/1 “Financial Intermediation under the AML” margin no. 13 ff.).
According to your specifications, the DIAM Token serves as a means of payment within the Diamond Net protocol and therefore qualifies as a payment token. The payment means function of the DIAM Token is the main focus. There are no apparent reasons why the issue of DIAM Tokens would be accessory to a usage function or other main activity. The issuance of payment tokens, which can be technically transferred on a blockchain infrastructure, represents an issuance of means of payment that is subject to subordination, from a money laundering perspective.
In this case, the DIAM tokens are already transferable on the Diamante Net protocol from the ICO phase, which is why their issuance is subject to the MLA. Diamante CH must therefore join a recognized self-regulating organization according to Art. 24 AML or call/ involve a financial intermediary authorized in Switzerland under the MLA for the receipt of the funds and the fulfilment of the due diligence obligations.
Since the DIAM Token does not give the impression of a debt right with capital market character and the Diamante Net protocol is functional at the time of token issuance, a qualification as investment token is not possible. This assessment is based on the understanding that the functions announced on the website www.diamanteblockchain.com and based on the protocol are also functional at the time of token issuance.
The DIAM Token does not entitle the purchaser to a refund from Diamante CH as issuer of the token. The issuance of the token does not fall under the definition of a deposit and therefore there is no authorization requirement according to the Banking Act (BankG; SR 952.0). Since the funds received within the framework of the ICO are not intended to be managed by third parties, the applicability of the Collective Investment Schemes Act (CISA; SR 951.31) is also not considered.
