Simplified destruction procedure of counterfeit goods in small consignments

Due to the increasing importation of counterfeit goods via small postal consignments, Switzerland introduced a simplified destruction procedure effective from 1 July 2025. Rights holders will now have two options when filing a customs assistance request: they can continue to rely on the existing ordinary procedure, or they may request a new simplified procedure as the default approach. Under the simplified procedure, only the recipient of the intercepted goods is notified. If the recipient does not expressly object within the prescribed period, the counterfeit goods are destroyed without further involvement of the rights holder. Only in cases where the recipient objects will the rights holder be informed, at which point the matter is handled under the existing ordinary procedure. This revision is intended to reduce administrative burdens for both customs authorities and rights holders, while bringing the Swiss procedure closer in line with EU regulations. 

INTRODUCTION 

In recent years, e-commerce has experienced rapid and sustained growth across Switzerland, significantly transforming consumer behaviour and international supply chains. This upward trend in online shopping has also led to a noticeable surge in the importation of counterfeit goods, which increasingly enter the country in the form of small postal consignments, often addressed to individual consumers. According to figures published by the Swiss Federal Institute of Intellectual Property (IPI), over 90% of counterfeit items intercepted by the Federal Office for Customs and Border Security (FOCBS) derive from consignments containing three or fewer articles. Each interception currently necessitates the initiation of a resource-intensive administrative process, which may evolve into formal judicial proceedings. This process imposes a disproportionate burden on both the rights holders and the FOCBS, diverting resources from their primary enforcement and control responsibilities.
In response to these inefficiencies, on 26 April 2023 the Swiss Federal Council submitted the dispatch for the Federal Act on the Introduction of a Simplified Procedure for the Destruction of Small Consignments in Intellectual Property Law. This act, along with its accompanying ordinance, entered into force on 1 July 2025 after the referendum period expired without action. Through this reform, Switzerland brings its practices in line with those of the EU, which has a comparable simplified system in place under Regulation (EU) No. 608/2013.
 

FORMER LEGAL REGIME

Under the former legal regime, only the ordinary procedure was available for rights holders to seek assistance from the FOCBS. Under this ordinary procedure, the FOCBS is empowered to notify rights holders or authorised collecting societies when goods suspected of infringing intellectual property (IP) rights are identified. Such goods may be held for an initial period of three working days to enable submission of a formal request for assistance.
Alternatively, rights holders may submit a request for assistance to the FOCBS in advance. In this request for assistance, rights holders may submit documentation and product samples to specify the products that may be counterfeited. Where such a request is in place, and a consignment suspected of infringing rights is intercepted, the FOCBS will notify both the applicant and the declarant, holder, or owner of the goods. Each party is then afforded a period of ten working days (or, in justified cases, twenty working days) to take one of the following steps: the applicant may authorise the release of the goods where the suspicion proves unfounded; or the applicant may seek provisional measures from the competent judicial authority. Should no action be taken within the prescribed period, the goods must be released.
In addition, a request for the destruction of the goods may be submitted at the time of filing the request for assistance. The counterparty retains the right to object. Where no objection is made, or the counterparty expressly consents, the FOCBS will proceed with the destruction of the goods and retain samples for any future damages' claims. Where the recipient of the goods lodges an objection, the applicant must seek provisional measures from the competent court within ten (or, where justified, twenty) working days. Otherwise, the consignment must be released. Any ensuing civil proceedings will determine whether an infringement of intellectual property rights has occurred. 
This procedure places a substantial administrative burden on rights holders and the FOCBS. The rights holders must submit documentation and product samples in nearly all cases, while the FOCBS must inform and set deadlines both for the rights holder and the declarant, holder, or owner of the goods even though over 95% of recipients consent to the destruction. The necessity to submit physical samples, maintain photographic records, and monitor deadlines in duplicate significantly increases the costs of enforcement and depletes FOCBS resources—often without culminating in court proceedings. Given the volume of cross-border e-commerce, reform was needed.

KEY REFORMS

The core of the revision is the creation of an optional simplified destruction procedure that the rights holder can select in the request for assistance. It applies to small consignments, which are defined in the implementing ordinance as consignments of no more than three units and less than five kilograms gross weight. If such a consignment is intercepted, the FOCBS only informs the recipient of the goods and advises them that the goods will be destroyed if they do not expressly object within ten working days. If there is no response, the FOCBS destroys the goods at the expense of the applicant (i.e. the rights holder) expense; claims for damages against the declarant, holder, or owner of the goods are excluded ex lege in this procedure. If the recipient objects, the ordinary procedure described above is automatically continued. This means that the applicant will only be notified if the recipient objects to the destruction. The applicant will also be regularly informed about the quantity, type, and sender of the goods destroyed under the simplified procedure.
To further reduce the burden, the FOCBS will delegate the entire administrative procedure for small consignments to the IPI. The fee schedule will be adjusted. The simplified procedure will cost a flat rate of CHF 80, while CHF 120 remains due for the ordinary procedure. The destruction should take place no earlier than three months after the expiry of the deadline to avoid any claims for damages in connection with unjustified destruction due to expiry of the deadline. All relevant intellectual property laws will be harmonised in the framework act so that uniform rules apply to trade mark, design, patent, and copyright law. The reform is also compatible with WTO TRIPS standards and bilateral obligations with the EU.

The main differences from the previous ordinary procedure are:

• Notification to the applicant only takes place if the recipient expressly refuses destruction.
• Claims for damages by the applicant against the recipient (e.g. for the costs of destruction) are excluded ex lege in the simplified procedure 
• The applicant is only periodically informed about the quantity, type, and sender of the destroyed goods.

OUTLOOK

The simplified procedure is expected to eliminate redundant dual notifications and precautionary litigation measures in over 95% of cases. The FOCBS intends to allocate its freed-up capacity to intensified border controls, reinforcing Switzerland's IP enforcement infrastructure. Rights holders will benefit from reduced administrative overheads, predictable costs, and periodic insight into destruction outcomes via summary reports issued by the IPI. Recipients of potentially counterfeit goods can quietly resolve these matters without legal repercussions, provided they do not object. Should they oppose destruction, they maintain full legal rights to challenge the process in civil court. Market participants, particularly those engaged in customs monitoring, are advised to revise their standard procedures. Contractual frameworks such as licensing and fulfilment agreements should explicitly address cost liability for the CHF 80 simplified destruction fee to avoid recourse insecurities. Given its integration into the ongoing federal digital transformation efforts and alignment with EU standards, the procedure is expected to be smoothly embedded into existing operational structures. Ultimately, the reform introduces a legally robust, economically efficient instrument that improves the enforcement of IP rights while avoiding unnecessary interference with legitimate trade. The realisation of its full potential, however, hinges on its consistent adoption by rights holders, declarants, and service providers alike.