The current procedure for destroying counterfeit goods

Proprietors or licensees of trademarks, designs, copyrights and patents may apply for assistance with the Federal Office for Customs and Border Security (FOCBS), which will withhold suspected counterfeit goods at the border and destroy them if the buyer does not expressly object to their destruction within a period of 10 days. This period may be extended once by an additional 10 days.

Destroying counterfeit goods is labor-intensive for the FOCBS and places an administrative burden both on right holders as well as the FOCBS. Under the current procedure, the FOCBS must inform both the right holder and the purchaser of the withholding of the goods and monitor the time limits. At this point, the right holders do not know yet if the purchaser objects to the destruction of the goods. For this eventuality, they have to prepare to initiate criminal or civil proceedings to ensure that the goods are seized and not handed to the buyer. For this purpose, they may request the FOCBS to send them samples or images of the goods or grant them authorization to inspect them.

This administrative burden makes the FOCBS less effective in its fight against counterfeit products and may result in fewer counterfeit goods being intercepted. In addition, according to the Swiss Federal Council, in most cases these steps prove to be not only unnecessary but also disproportionate. The purchaser of the goods usually acknowledge that the goods are counterfeit and do not object to their destruction. Moreover, more than 90% of counterfeits intercepted at the border are in small consignments containing up to three objects.

The envisaged simplified procedure for small consignments

The proposed act intends to introduce a simplified procedure for small consignments, inspired by the procedure introduced by the EU with Regulation No. 608/2013 of 12 June 2013 concerning customs enforcement of intellectual property rights, which will complement the existing ordinary procedure described above. When a consignment qualifies as "small" will be defined by the Federal Council at a later stage. It is possible that the Federal Council would deviate from the relevant EU regulation, according to which consignments containing three units or less or having a gross weight of less than two kilograms are subject to the simplified procedure. 

According to the proposed draft act, for small consignments, right holders shall have two options in the future: They shall be able to apply for the goods to be destroyed in accordance with the existing ordinary procedure, or when applying for customs assistance they may simultaneously ask for the new simplified procedure to be applied. The simplified procedure will thus only be applicable if the right holder so requests.

In the simplified procedure, only the person who ordered the goods will initially be informed of the interception at the border. If they do not object within 10 working days, the counterfeit goods will be destroyed at the cost of the right holder without any further notification. In order to limit the liability risk for the right holder in case the goods were not counterfeit but the person ordering them has missed the deadline of 10 working days, the goods may only be destroyed three months after the notification at the earliest. Any liability of the importing person vis-à-vis the right holder for the damages arising from the destruction of the goods is explicitly excluded.

Only if the person who ordered the goods objects to the destruction shall the rights holder be informed so that the rights holder has 10 days or, if a reasoned request is submitted, 20 days to obtain an order from criminal authorities or a court to seize the goods. The right holder will be informed in periodic reports about the amount and type of destroyed goods as well as about their sender, but not on the person who ordered the destroyed goods.

This envisaged simplified procedure will not only lower the administrative burden on the responsible authorities but also on the right holders requesting such simplified procedure. In particular, the right holders will only have to deal with cases in which the person ordering the goods objects to their destruction. At the same time, the rights of the person ordering the goods are not restricted in any way, since they may still object to the destruction of the goods or request a judicial review of the matter.

Timeline and next steps

The draft act proposed by the Federal Council will now have to be debated and adopted by the Swiss Parliament. The debate has not yet been scheduled on the Parliament's agenda.