New legislation targeting counterfeiting and piracy

Background

An effective fight against counterfeiting and piracy requires tough legal instruments. As the legal means available in Switzerland up until recently were not equal to this challenge, two legislative amendments took effect on 1 July 2008. These brought various reforms to all intellectual property laws and improved the legal options for law enforcement, particularly in the fight against counterfeiting and piracy.

Import, export and carrying in transit for private use

Owners of trademark and designs rights now have the option to prohibit the import, export and transiting of commercially produced infringing objects for private use and to have those goods withheld by Customs. The changes were necessary because so-called capillary imports (i.e. the importation of infringing goods in small quantities) have greatly increased, which made an effective fight against counterfeiting impossible; commercial shipments were being divided into increasingly smaller quantities as supposed private imports in order to escape withholding at the border. The new regulation affects only procedures at the border. Private persons in Switzerland who are in possession of  unlawfully manufactured goods can still not be legally prosecuted.

In neighbouring countries such as France and Italy, the private import of counterfeits has been prohibited for a while and is punished with high fines. Swiss regulation is limited to preventing the international distribution of counterfeit design and trademark products and therefore does not provide for punishment for the private import, export and carrying in transit of counterfeit goods.

Simplified procedure for destruction

All of the intellectual property laws make it possible for rights holders to submit a petition for a simplified procedure for destruction. Once the goods have been withheld, the persons who are declaring the goods are informed of the petition to withhold and destroy. If no opposition is expressly filed within 10, respectively 20 days after the notification, the counterfeit and pirated products are destroyed by the Customs Administration. In case an unjustified destruction takes place, the injured party has the right to compensation as long as they did not expressly approve the destruction; the Customs Administration keeps a sample or model of the destroyed goods as evidence for one year. If the destruction is expressly refused, it can only be carried out with a court order.

The purpose of the simplified destruction procedure is to remove infringing goods from the market and prevent unfair financial gain. Often, however, no one claims the illegal objects detained at the border, which considerably complicates the introduction of a judicial procedure to destroy the goods. However, the person who claims the goods in question may be interested in a simplified procedure for destruction because it avoids a potentially expensive court litigation process.

The on-demand right in the revised Copyright Act

An 'on-demand right’ refers to the right to make a work accessible to the public over a communication network, such as the internet. Since 1 July 2008, this right will also be extended not only to authors, but to performing artists, producers and broadcasting organisations through the so-called related rights. An on-demand right makes it possible to fend off pirates on the internet and prevent unlawful offers of creative performances. Deliberately infringing an on-demand right can be punished with a custodial sentence of up to five years and a monetary fine of up to CHF 1,080,000.

Protection of technological measures in the revised Copyright Act

Technological measures can help rights owners prevent unlawful uses of their protected works or performances. Copyright now protects these technological measures with a circumvention prohibition. Producing and distributing circumvention software is illegal.

Monitoring Office for Technological Measures in the revised Copyright Act

A monitoring office has been established as a counterpart to the protection of technological measures. It has two functions. The first is to monitor the effects of technological measures on the protective measures and the second is to promote partnership solutions between consumers and those employing technological measures.

Protection of rights information in the revised Copyright Act

Ditigal information, which identifies the subject of the right, the rights owner and the authorisation and informs about modalities and conditions of use, is also protected. Only acts which foster the infringement of copyright and related rights will be punished.

Other provisions

The large profits and comparatively few risks involved in the commercial infringement of intellectual property rights is what attract offenders. With considerably stricter and harmonised threats of penalty, however, the aim is to achieve a more effective deterrent. All commercial infringements of intellectual property rights can be punished with a custodial sentence of up to five years and a monetary fine of up to CHF 1,080,000.

The Customs Administration will be able to take samples or models of withheld goods upon petition and send them to the rights owner. This contributes to giving rights owners as much information as possible in order to decide on how to proceed.

Last modified:31.01.2014 11:00

Documents

  • Dispatch on the amendment of the Patent Law and the federal decree on the approval of the Patent Law Treaty and the execution ordinance of 23 November 2005 in German or French (pdf 970 KB)
  • Dispatch on the federal decision on the approval of two treaties by the World Intellectual Property Organization and on the amendment of the Copyright Act in German or French (pdf 621 KB)
  • Pocket guide: "Copyright in the Digital Age: Highway or Dead-end?" (pdf 1.8 MB)