WORLD TRADE  
ORGANIZATION  IP/C/W/492 
31 May 2007 
 
 (07-2232) 
Council for Trade-Related Aspects 
of Intellectual Property Rights Original:   English 
 
 
 
ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS: 
COMMUNICATION AND COORDINATION AS A KEY 
TO EFFECTIVE BORDER MEASURES 
 
Communication from Switzerland  
  
 The following communication, dated 30 May 2007, is being circulated at the request of the Delegation of Switzerland. 
 
 
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I. INTRODUCTION 
1. The constant increase of counterfeiting and pir acy and the negative impact on trade, public 
health and safety in both developing and devel oped economies make the combat against this 
phenomenon a formidable challenge for all WTO Members.  The TRIPS Agreement contains a 
comprehensive chapter on enforcement in Part III an d special requirements related to border measures 
detailed in Section 4, thus rec ognizing border measures as an effective tool in the fight against 
counterfeiting and piracy. 
2. Providing a legal framework and designa ting national authorities responsible for 
implementing relevant national legi slation are not the only preconditions for an effective fight against 
counterfeiting and piracy:  equally  important are well-functioning communication and coordination 
structures.  This is particularly important in the area of border measures, as customs authorities have to communicate with other national agencies and right holders as well as foreign customs authorities 
and international agencies.  Successful contro ls require sound communication and coordination 
among all the stakeholders involved.  This  Communication will focus on the question of 
communication and cooperation in the field of border measures. 
3. Switzerland offers this submission in order to share its experience and to contribute to the 
constructive exchange of information within th e TRIPS Council regarding experiences of Members 
on possible ways and means of implementing Part III of the TRIPS Agreement and of improving the 
enforcement of intellectual property rights. 
II. THE CRUCIAL ROLE OF BORDER MEASURES IN AN EFFECTIVE 
ENFORCEMENT STRATEGY 
4. As pointed out above, border measures have been  recognized as an effective tool to prevent 
the proliferation of counterfeited and pirated goods.  Once such illegal goods have crossed borders, it 
is much more difficult to detect them within a c ountry's territory and to track their source.  The 
primary role of the customs administration in th e enforcement of intellectual property rights is IP/C/W/492 
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  underpinned in Section 4 of Part III of the TRIPS Ag reement, which contains detailed provisions on 
border measures.  While, today, large quantities of  infringing goods are seized by customs authorities 
worldwide, the constantly growing trade flow incr easingly strains the human and financial resources 
of the customs authorities.  Computer-based program s for screening electronic shipment data, such as 
the IPR Risk Model described by the United States in their Communication IP/C/W/488, are one of a 
range of assisting tools which can enhance the effi ciency of customs efforts and the execution of 
border measures.  However, even with the assistan ce of such programs, customs can only effectively 
carry out their role as a major partner in a national enforcement strategy if they have the relevant 
information at their disposal.  This information must , first of all, be provided by right holders.  That 
information, however, has to be closely interlinke d with other information customs authorities have 
already on hand as well as with that of other government agencies involved with issues of 
counterfeiting and piracy.  Without such informa tion and coordination, border measures may remain 
ineffective.  This communication highlights th e main communication and cooperation channels 
which, in Switzerland's experience, are fundamental for ensuring the necessary flow of information in 
support of effective border controls targeting successfully counterfeited and pirated products.  
III. COMMUNICATION AND COORDINATION 
A. I
NVOLVEMENT OF RIGHT HOLDERS  
5. Customs authorities can only achieve significant r esults in the fight against counterfeited and 
pirated products if they are in a position to identif y infringing consignments efficiently.  This means 
that they need to rely both on their own experi ence as well as on information provided by right 
holders for identification of high risk consignments .  Such information, if fed into computer-based 
tools or databases, has the additional value of making the latter more effective.  Technological 
advances and increasing sophistication in manufactur ing counterfeited and pira ted products make the 
identification and determination of such goods more and more difficult.  Information and 
documentation delivered proactively to customs auth orities by the right holder and his commitment to 
following-up are key elements for the eff ective application of border measures.  
6. While some Members provide for ex offici o action by customs authorities to suspend 
suspicious consignments in their national legisla tion, in many cases the most important trigger for 
customs authorities to suspend goods at the border is  an application for border measures filed by a 
right holder, as provided under Article 51 of the TRI PS Agreement.  Without such an application, 
customs authorities have limited authority - and capacity - to act on their own, and, in the case of ex officio action, it may even be difficult to determ ine the right holder concerned.  If right holders are 
willing to invest the necessary dilig ence to file a detailed application for border measures, and if 
customs authorities and right holders work cl osely together, much can be achieved.   
7. In Switzerland, right holder applications genera lly are not filed for a specific consignment 
suspected to contain counterfeited or pirated products.  This is b ecause right holders rarely have 
concrete knowledge about an immi nent consignment of possibly counterfeited goods.  To assist right 
holders, the Swiss Federal Customs Administration (hereafter:  FCA) ( Oberzolldirektion = Directorate 
General of Customs) has an information sheet on its website which guides right holders through the 
application procedure.  After an application has been made, the FCA examines whether all the 
required information has been supplied and will contact the right holder to request further 
specifications, if needed.  Swiss customs officials ha ve found that an easy-to-use checklist of features 
which distinguish a genuine from a fake product is par ticularly useful.  When they control suspicious 
consignments, officials must swiftly judge the goo ds in question.  Pictures provided by the right 
holder illustrating typical characteristics of fake goods  in comparison to original ones can facilitate 
this task.  For example, in the case of medicin es, such illustration may detail the packaging or other 
specific characteristics (form, colour, signet on pill, etc.) of the pharmaceutical and/or its counterfeit.   IP/C/W/492 
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  8. In Switzerland, an application for border meas ures with the FCA is valid for two years.  
During that period, any relevant new or additional information concerning the original product or the 
illegal copies becoming available to the right hold er should be communicated to the FCA without 
delay so that the application and/or the relevant ri sk profiles can be updated.  Filing an application is 
thus not a one-time action, but requires regular follow-up by the right holder.  If, on the basis of the 
application, the customs officials find grounds to suspend suspicious goods, they immediately inform 
the right holder who is expected to inspect the goods and, where necessary, initiate proceedings 
according to Article 55 of the TRIPS Agreement.  If customs cannot establish whether the goods in 
question infringe intellectual property rights, they mu st be released.  Prompt cooperation of the right 
holder with the customs authorities is thus crucial.   If goods are seized and released repeatedly for the 
same reason without the right holder then actually ex amining them and taking action, this could be 
taken into account when customs adjust their risk profiles.  In case of ex officio suspensions, the 
customs office informs the right holder directly, if  known, otherwise the FCA will be contacted which 
undertakes further investigation to try to identify the right holder. 
9. While filing an application for border measures to customs has proven to be one of the most 
efficient means to withdraw counte rfeited and pirated goods from circula tion, the tool seems not to be 
used systemically by all right holders whose inte llectual property rights are subject to counterfeiting 
and piracy in international trade.  With further awareness building, they could be encouraged to use 
this instrument more readily to t hus increase the efficiency of customs controls.  At the same time, the 
application process should be kept as simple and cost-efficient as possible, avoiding duplication of 
work such as the multiple submission of documen tation in the national application process.  
10. Today, right holders have to  file and update individual a pplications with each national 
customs administration which may be burdensome,  in particular for small and medium sized 
enterprises.  Improved regional and international coop eration might facilitate this task by making the 
information that right holders submit when filing applications for border measures available via a 
centralized database for customs authorities. 
B. COMMUNICATION AND COORDINATION WITHIN AND BETWEEN NATIONAL CUSTOMS 
ADMINISTRATIONS  
11. In Switzerland, all right holder applications  are processed by the FCA which coordinates the 
process and then makes the information available to  the regional customs offices through an internal 
Customs Risk Analysis Platform.  Each customs of fice can consult any and all applications via this 
internal database.  In addition, the FCA provides the custom offices with a national risk analysis 
identifying the characteristics of high-risk consignm ents, including an identification of risk factors 
concerning counterfeited and pirate d goods.  However, customs offices often require localized risk 
analysis.  For example, while the customs offices at  Zurich or Geneva airport are often confronted 
with a great number of postal items containing only a small number of infringing goods (air freight), 
the customs office in Basel typically h as to deal with large consignments.  
12. Today, the trafficking of counterfeited and pi rated goods is an activity of international 
dimensions.  Counteractive measures must take this  into account.  For example, one practice for by-
passing customs authorities' risk profiles is to c onceal the true origin of the goods by having the 
consignment transit through a number of countries.  Si nce the origin of the goods is one main criterion 
used to identify high risk cargo, this strategy of ten succeeds in avoiding actual control at the border.  
Communication among national customs authorities at th e regional and interna tional level is key in 
countering such strategies.  Switzerland - being situated in the centre of Western Europe - has signed 
a customs cooperation agreement on administrative a ssistance with the European Community which 
allows the exchange of information concerning infringements of customs regulations.  The FCA 
works closely together with customs authorities of  member States of the European Union as well as 
the European Anti-Fraud Office (OLAF;  responsib le for enforcement aspects in customs matters, IP/C/W/492 
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  including the fight against counterfeit and pira ted goods).  Swiss customs officials regularly 
participate in operations coordinated by OLAF, which include actions against counterfeiting and 
piracy.  
C. C
OMMUNICATION AND COORDINATION WITH OTHER NATIONAL GOVERNMENT AGENCIES  
13. To provide effective border measures, customs o fficials need the expertise and information of 
other governmental agencies, such as the intellect ual property office or, for another example, the 
governmental agency responsible for the national marketing approval of pharmaceuticals. 
14. Easy and swift access to databases containing registered intellectual property rights, such as 
the national trademark register, is important to  determine prima facie whether suspended goods 
infringe valid intellectual property rights and to conf irm – or even identify - the relevant right holder 
and/or address in order to send the notification a bout the seizure of suspected goods.  Access to such 
databases seems all the more indispensable if a WTO Member has chosen to provide also for 
ex officio action by customs in its legislation, i. e., when the customs offi ce suspends suspected goods 
at the border prior to or without an application by  the right holder.  In Switzerland, customs offices 
have direct access to a database ("Swissreg")1 hosted by the Swiss Federal Institute of Intellectual 
Property (hereafter:  "the Institute").  In addition to patent and design rights, Swissreg contains all 
trademarks registered in Switzerland.  Informati on on international trademarks registered under the 
Madrid System can be found by consulting WIPO's online register "Madrid Express".2  On occasion, 
Swiss customs officials also contact the Institute and mandate an expert search.  
15. An important partner for customs authoriti es in Switzerland is Swissmedic, the Swiss 
Therapeutic Agency responsible fo r market admission and control of medicinal products.  Worldwide 
the problem of counterfeited medicines has been exa cerbated considerably in recent years, especially 
with Internet purchases becoming increasingly comm on.  The FCA and Swissmedic are closely 
collaborating and coordinating their activities to count er this trend thanks to the Federal Law on 
Medicinal Products and Medical Devices (Law on Ther apeutic Products).  According to international 
estimates, around 1% of sales of medicines in developed countries and over 10% in developing 
countries are counterfeits.  According to WHO, there are areas in many countri es of Africa, parts of 
Asia, and Latin America where more than 30% of the medicines sold are counterfeits.  WHO also 
estimates that 50% of medicines purchased over th e Internet from websites which conceal their 
physical address are counterfeits.3  Swiss customs officials communi cate with Swissmedic directly 
and seize suspicious medicinal goods on behalf of  Swissmedic.  If goods are seized at a customs 
office, the office notifies Swissmedic which then carries out the necessary administrative proceedings 
to determine if the seized goods are in infringement of the Law on Therapeutic Products.  If 
Swissmedic has information on an imminent shipme nt of counterfeit pharmaceuticals to cross Swiss 
borders, the agency will inform the FCA or the speci fic customs office and request a target operation.  
D. COMMUNICATION WITH AND OUTREACH TO THE PUBLIC AT LARGE  
16. Surveys show that a lack of awareness persis ts among the general public regarding the risks 
posed by counterfeited and pirated products.  Often this illegal trade is still perceived as a sort of 
peccadillo.  Not only is the considerable economic damage ignored, but also the safety and health 
risks are not taken into account when counterfeite d or pirated products are bought or consumed 
(intentionally or unintentionally). 
                                                      
1 www.swissreg.ch 
2 www.wipo.int/madrid/en/services/madrid_express.htm 
3 WHO, Fact sheet N°275 Revised 14 November 2006, <http://www.who.int/mediacentre/factsheets/fs275/en/ >  IP/C/W/492 
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  17. This lack of public awareness creates a form idable problem for the customs authorities: 
border measure mechanisms in accordance with th e TRIPS Agreement are often not geared to 
systematically detect and seize small quantities of  goods of a non-commercial nature, such as are 
sometimes contained in personal luggage of travelle rs.  Article 60 of the TRIPS Agreement explicitly 
addresses and recognizes this situa tion and provides Members with the flexibility to exempt such 
small consignments from the application of border measures.  
18. The sale of counterfeited pharmaceuticals or othe r products in small quantities purchased over 
the Internet and delivered by mail in ordinary e nvelopes or inconspicuous small boxes has given this 
problem a new dimension.  While an individual consignment might cause limited damage in a 
particular case, it seems obvious that overall, considerable quantities of counterfeited and pirated 
products are avoiding border measure mechanisms  and infiltrate the country, bypassing any safety 
check or marketing approval procedure that may apply otherwise to this category of products under 
national law.  This undermines the efforts of cust oms as well as the efficacy and credibility of the 
system as a whole and puts the consumers of these goods at risk.  
19. While the Swiss customs authorities attempt to create a net with their border measures in 
order to seize counterfeited and pirated goods, they  are aware that they may not be able to 
systematically prevent small consignments from sli pping through.  Thus, it was decided that public 
awareness needed to be raised in Switzerland to encourage people to stop buying or ordering such 
products over the Internet in the first place. 
E. SWISS ANTI-COUNTERFEITING AND PIRACY PLATFORM :  ENHANCING COMMUNICATION , 
COORDINATION AND RAISING AWARENESS AT ALL LEVELS  
20. To address the problem of counterfeiting and piracy at the national level in a more 
comprehensive and inclusive manner, Switzerland launched in 2005 a public -private partnership 
through the establishment of an anti-counterfeiting and piracy platform ("STOP PIRACY - the Swiss 
Anti-Counterfeiting and Piracy Platform") which ai ms, among many other activities, to better address 
the challenge of improving coopera tion and coordination regarding bor der measures to allow for their 
enhanced application and administration in the context of intellectual property enforcement.  
21. The platform serves as th e Swiss information and coordination hub for problems of 
counterfeiting and piracy by linking  and coordinating between all re levant national stakeholders, be 
this at the government/inter-agency le vel, with right holders or through outreach to the public at large. 
 IP/C/W/492 
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  22. At the heart of the platform is the Counterfeiting and Piracy Contact Point  which is managed 
by the Swiss Federal Institute of Intellectual Property.
4  The Contact Point responds to inquiries from 
and shares information with the public.  Furtherm ore, it maintains the Swiss Anti-Counterfeiting and 
Piracy Platform website5 and serves as the secretariat for the wo rking group of the public-private 
partnership.  Also, the Institute acts as the "Pub lic One-Stop Shop" which is  the liaison between the 
Contact Point and the federal agencies invol ved, including the customs authorities. 
23. Its counterpart for the private sector side is  the "Private One-Stop Shop", managed by the 
Swiss chapter of the International Chamber of Commerce (ICC Switzerland).  The "Private One-Stop Shop" functions as the liaison between the "Contact Point" and the business and trade organizations 
affected by counterfeiting and piracy.  It is di rectly linked to the information exchange forum 
(restricted access by way of extranet) which is used  by the participating business members and trade 
associations for information such as: 
• details on domestic and foreign contacts for setting up an information network; 
 
• reports on field experiences; 
 
• information regarding current situations at  the national level and in other countries, 
problems encountered, business strategies, etc. 
 
24. The working group has a coordinating function be tween the Swiss governmental agencies and 
the Swiss industry.  Its purpose is to hear recommendations from its members regarding the 
implementation of laws and other activities invol ving the public, including awareness building 
campaigns.  It is responsible for the establishment a nd implementation of a plan of action.  An initial 
focal point of the working group has been to la unch a general awareness campaign, which included 
placing posters all over Switzerland with a focus at  the borders and other locations frequented by 
travellers, such as airports and train stations, di stributing flyers and tee shirts as well as placing 
advertising banners on several websites. 
IV. CONCLUSIONS 
25. Border measures are recognized as an e ffective instrument to support national and 
international efforts to keep counterfeited and pi rated goods out of circulation and prevent their 
proliferation.  In accordance with Articles 51 to  60 of the TRIPS Agreement, WTO Members have 
implemented these provisions in different forms and make use of border measures to a varying 
degree, some having chosen to extend their scope  of application at the national level beyond the 
minimum standards required under the TRIPS Agreement.    
 
26. Whatever scope, mechanism or procedure c hosen, in Switzerland's experience, systematic 
communication and coordination among all relevant government and private stakeholders involved 
are key to making any national border measure regi me work effectively.  Furthermore, given the 
inherently transnational component of border meas ures, communication and coordination efforts need 
to be extended to regional and in ternational cooperation for these meas ures to be truly effective.   
 
 
                                                     
 
4 http://www.ige.ch/E/jurinfo/j107.shtm#2  
5 http://www.stop-piracy .ch/en/home/h1.shtm#   IP/C/W/492 
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  27. Switzerland hopes that this submission on par ticular aspects of its experience with border 
measures will contribute to a fruitful discussion in the TRIPS Council.  An exchange of Members' experiences should enhance and facilitate the task  of implementing the TRIPS border measures 
provisions at the national level.  Particular probl ems and needs faced by Members in the context of 
such implementation should also be discussed, espec ially those of developing countries.  In this way 
they can be appropriately taken into account in international technical cooperation and assistance 
activities.   
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