Anti-counterfeiting enforcement in Switzerland and Austria

Summary of the presentation by React partner; Benedikt Schmidt for Switzerland and Katharina Schmid for Austria at the React meeting November 26 in Zurich.

Switzerland

Customs enforcement: the procedure is overall very similar to the EU procedure with a few important exceptions:

• goods can be stopped in transit;
• Training of customs officials is NOT required;
• Fees for the application are between 1500-3000 CHF; renewal procedure 500 CHF;
• Customs will also charge for the notification procedure; in most cases the simplified proceedings will be applied and for those cases, customs will charge as an average 200 CHF
• Single item cases are disputed; a court case is pending if such cases can still be pursued at the border!
• There is no small consignment procedure available.

Effectively, Swiss customs intercepts mostly small packages.

Results are not bad though!

Civil enforcement is relatively quick with an ex-parte procedure available within 1-5 days. There are some strict requirements though and the civil proceedings can end up costly.

Switzerland applies global exhaustion principles: parallel importation is therefor allowed!

Criminal proceedings are much less costly. Police also has proven to be cooperative/ The complaint has to be filed within 3 months from knowledge of the infringement. Within the criminal proceedings, the rights owner can file civil claims.

Austria

Austria obviously follows the EU legislation meaning the Customs Regulation 608/2013 and the Enforcement Directive 2004/.

Customs enforcement; like in most EU countries the vast majority of cases concerns small packages (88% of all seizures).

Results Austrian customs are unfortunately not impressive! With a significant decrease in the past year!

https://english.bmf.gv.at/customs/travellers/productpiracy.html

There is not a major counterfeiting problem in Austria. However a few markets need regular checking:

Criminal enforcement in Austria is typical in the sense that is has to be initiated by the private parties! There is no ex-officio public protection available. This implies that the rights holder is responsible for the collection of the evidence and the filing of a private criminal complaint. This has to be done by the Vienna Criminal court. A search-warrant and or seizure requires the approval of this Court! Good thing is that the Court is bound to take the decision within 14 days from the complaint. Criminal proceedings are relatively short: between 4- months from filing.

The Court may reward civil claim damages to the rights owner in the judgment, however, in most cases this is referred to the civil court.

In the situation that the criminal complaint is denied, the rights holder may still seek independent criminal forfeiture and destruction of the counterfeits.

Civil enforcement remedies are widely available. Ignorance of negligence is NOT required for an injunction order to be granted. The average timelines for the different civil proceedings are not bad and below the average in Europe.

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