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Ecuador, as part of the Andean Community (Venezuela, Colombia, Ecuador, Bolivia and
Peru) approved Decision 486, replacing Decision 344.
Main modifications are written in "script".
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Patents | Industrial
Designs, Utility Models | Topographies | Trademarks
PATENTS
Patents are granted for twenty years.
The following items shall not be given patent.
a) Discoveries, scientific theories, mathematical methods;
b) Materials already existing in nature, including any living form genome;
c) Literary and artistic works or any other aesthetic creation;
d) Plans, rules and methods for the exercise of intellectual activities, for games or
economical and commercial activities, as well as computer programs or logical supports
not being susceptible of industrial application; and,
e) Ways to show information
f) The inventions whose commercial exploitation is necessarily prevented to protect public
order or morality, including the protection of life or health, or to preserve vegetables
or to avoid damage to the environment;
g) diagnosis, therapeutic and surgical methods for people or animals; and,
h) Plant and animal breeds, as well as essentially biologic procedures to
obtain plants or animals.
New uses of patented products or processes are not patentable.( Art. 21)
Publication for Opposition
Once the formal requirements are accomplished, an abstract is published within
eighteen months from the application or priority date (or earlier under applicant's
request). During a sixty-day period (extendable once) any third
parties may oppose.
Examination:
Within six months as from the publication date, the applicant has to request a
technical examination of his patent application; otherwise, this application
will be declared abandoned (Article 44), then, the Patent Office shall proceed to
examine patentability. They may request the results of examinations done in
other countries. Applicant may request to stop the examination procedure
until the examination in such a country is finished. If the patent is acceptable, the
patent certificate will be issued. If not accepted or partially accepted, is granted a
sixty working days (extendable once) to submit additional pleadings.
Patentee's Rights:
International exhaustion of the patent rights is stated.
A patent right cannot be enforced against an auto-reproducing biological material,
when it is used as basis for a new material. (Art. 53)
Claiming actions (Article 237):
When a third party applies for a patent affecting rights of a legitimate owner,
the damaged person shall claim his right and may ask for an assignment of such application
or registration, or may ask to be recognized as a co-applicant/ co-owner.
Annuities (Article 80):
Annuities must be paid in advance regarding both, granted patents and applications.
Payments for two or more annuities can be made at once.
Deadline to pay annuities is the last day of the month in which the patent was originally deposited.
After the due date, there is a grace period of six months for late payment.
Working:
Patents shall be worked in any Andean Pact Country within three years as from the granting
date or four years as from the application date, whichever is later. Licensing agreements
recordal is mandatory.
INDUSTRIAL DESIGNS AND UTILITY MODELS
Rules for Patents apply for these cases. Are granted for ten years, non-renewable.
LAYOUT DESIGN FOR SEMICONDUCTOR CIRCUITS (TOPOGRAPHIES)
Granted for ten years, to layout designs (topography) that is original and are not
currently in the semiconductor circuits industry. If consisting in a combination of elements
or interconnections shall be protected as well. Granted for ten years, to layout designs (topography) that is original and are not
currently in the semiconductor circuits industry. If consisting in a combination of elements
or interconnections shall be protected as well. (Art. 87)
Provisions stated for patents shall be applied.
TRADEMARKS
Registrable signs: Trademarks, Service marks, among others, sounds and odors may be
registered as a trademark, as well as combination of colors or a single color delimited by a
specific form. (Art. 134). Slogans, Collective Marks, Commercial Names, Trade Dress,
Geographical Indications. Certification Marks. (Art. 185)
Protection of Famous Trademarks
Famous marks enjoy levels of special protection, even if not locally registered. The
registrant of a widely known mark in Ecuador, in any Andean Country or in the international
trade, may take actions against pirates, regardless the Classification.
The owner of a notorious mark shall act against who use it, even without commercial purpose,
if such use causes confusion, damages the distinctive character of the notorious mark
or gives an unfair advantage. (Art. 226)
When a notorious mark is registered as domain name or as an e-mail, it may be
canceled. (Art. 233)
Priority
An application submitted in a member country of the WTO, the Andean Community or the
Paris Convention gives a priority of six months.
Procedure
Once the application is admitted, is examined the formal aspects within fifteen working
days following its deposit. If the application does not comply with such formal
requirements, is given a term of sixty days to fulfill requirements. After
approval the application is published for oppositions. Then, the examination takes place
and the Trademarks Office resolves over opposition and the concession or rejection.
Nice Classification is used, inclusion of the phrase "and all other goods/services
covered in class..." is no longer allowed. (Art. 139). A separate application per
class is necessary.
The applicant may amend any material error at any time before granting, only
with relation to secondary aspects.
Within thirty working days following the publication, any one may oppose. The
applicants are serviced with opposition for a thirty working days period, extendable
once, to reply. (Art. 148)
When opposing on the grounds of famous foreign marks (even if they are not registered),
and marks that are registered in other Member Country, and the opponent does not have
a prior local registration or, he must credit actual interest in the market through a local
deposit of the mark when lodging the opposition. (Art. 147)
Duration and Renewal
The trademark is granted for 10 years as from the date of registration, renewable for
like periods. Proof of use is not necessary for renewal purposes.
Use and Cancellation
A mark used by a recorded licensee is deemed used. A mark that has not been
used in at least one Member Country of the Andean Community during three consecutive years
can be cancelled. It is possible to ask for a partial cancellation of a trademark,
regarding the products or services covered by the registration that are not in use.
(Art. 165)
In addition, the Trademark Office will cancel the mark, when it is similar to a mark that
was widely known, at the time the application was filed for registration.
When a registered mark is not used, it will be tolerated the import of goods or services
identified with that mark, coming from another Andean Pact Country.
The Industrial Property Office may rule, either ex officio or upon petition, that the
trademark is invalid, prior to a hearing with the interested parties, when the trademark
registration was issued contrary to the law, on the grounds of false documents or data, or
obtained with bad faith.
Limitation of action.- An action for annulment may be brought within three (3) years
at the administrative stage, or five years (5) before a civil judge. (Art. 172)
When a person without right, applies or registers a mark, the legitimate owner shall
claim his right and may ask to be recognized as a co-applicant or co-owner. (Art. 237)
Remedies In Case of Infringements
Civil, administrative and criminal actions: Civil, administrative and criminal actions
Civil, administrative and criminal actions can be taken in case of violation
of rights. A demand may request for: Border Measures (Art. 250); preliminary
injunction measures Ceasing of violation acts; seizure of goods or other objects involved
in the transgression, withdrawal from commercial channels of merchandise, as well as its
destruction; seizure of tools and means used for the transgression; compensation for court
costs, damages and torts; repairing in any other form of the effects of the violation.
(Arts. 238-244)
A formal demand must follow the border measure or preliminary measure within the
next 10 days, otherwise such preliminary measure or border measure will be cancelled.
(Arts. 245-249)
Unfair Competition
Unfair competition: Acts linked to industrial property, performed in an
entrepreneurial scope, which are contrary to fair uses and practices. (Art. 258).
This concept is very wide and does not limit which conduct can be considered as unfair
competition. However Decision 486 stated among others, the following acts of unfair
competition:
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