Is Custom Recordal of Intellectual Property Rights (IPRs) available in Ecuador?
Is Custom Recordal of IPRs compulsory in Ecuador?
Is it an effective measure to stop the infiltration of illegal and counterfeit products in Ecuador?
Which law forms the legal basis for Custom Recordal of IPRs (Border Control Measures) in Ecuador?
The laws are as follows:
The Law 4045 of 2007 Andean Community Decision 486 (regarding trademarks)
Articles 250, 251, 252, 253, and 254
Is Custom Recordal of IPRs effective on import or export of goods or both?
Custom Recordal of IPRs is effective both on the import and export of goods.
What is the role of the customs department/authority? (Kindly give 2-3 points)
If the customs, in furtherance of an application made or on the basis of ex-officio measures, recognise that the goods may be infringing upon the rights of the proprietor of intellectual property rights, they assume the role of intercepting such consignments by inspecting and detaining them. They also act as the link of communication between the importer or exporter and the proprietor. They inform the parties as to the date, time, rationale, and location where the goods are detained for other proceedings to ensue thereafter.
Is there a procedure to record IP with the customs department/authority? If yes, then kindly explain it in brief.
A request for suspension of the customs operation has to be made. The holder of an IP rights linked to goods subject to import, export, or transit, may request the Customs administration the provisional suspension of said operation, while the competent judicial authority resolves the complaint or demand that the holder must present by the alleged pirate or false brand status. If this condition is established, the release or the authorization of shipment of the merchandise or the Customs Transit, as the case may be, will not proceed.
The suspension of the customs operation may also be ordered directly by the competent authority as a precautionary measure and while resolving the merits of the matter.
The suspension request will be known to the Foreign Trade Service Division or the agency that takes its place of the Customs Administration where the import, export, or transit is processed.
What documents are to be submitted along with the application for Custom Recordal of IPRs?
The request must be presented personally by the holder of the IPR, the federation or association empowered to represent it, and the legal representative or attorney, duly constituted. The following information needs to be provided in it:
1. Full name, identification, and residence address of the holder of the IPR.
2. Name or company name and address of who in the country is authorized or licensed to enjoy the IPRs.
3. Identification of your IPR and the facts consisting of its violation. If possible, the alleged perpetrators will be identified. In the case of a trademark, the registration certificate number will be indicated.
4. Indication of the place where the genuine merchandise is edited, engraved, printed, or, in general, produced; the identity of the manufacturer, his address and other means of communication that he knows.
5. Detailed description of the authentic goods.
6. If possible, the description of the supposedly pirated or false brand merchandise, object of the request, and indication of the place of its location.
7. If the IPR holder considers it necessary and he may not have previously done so, the request for authorization to examine the merchandise can be included.
The following documents needs to be attached to the request:
1. Copy of the registration, title, or document that accredits you as the owner of the right, in the events in which this is legally necessary to establish the right.
2. The power of attorney or document that certifies the quality with which it is acted, if applicable. 3. If the process on violation of IPRs has already been brought before the competent authority, a copy of the corresponding complaint or demand needs to be also attached.
4. Pieces of evidence that demonstrate the existence of an indication of infringement of the right.
Is the applicant required to execute a bond (against all liabilities and to bear the costs towards destruction, demurrage, and detention charges incurred till the time of destruction or disposal) with the customs department/authority for Custom Recordal of IPRs?
What is the time frame for the customs department/authority to notify the applicants whether their application (for custom recordal of IPRs) is registered or rejected?
The Customs administration will admit or reject the request by car, within 03 days following its presentation.
Does the customs department/authority have a centralized system or the Custom Recordal is required to be done with each port of entry in Ecuador by land, sea, and air?
Yes, the customs authority has a centralized system.
Is there an online system for Custom Recordal in Ecuador?
What is the official fee for Custom Recordal in Ecuador?
What is the term of Custom Recordal of IPRs? Can it be further renewed?
Does the customs department/authority have a right to conduct raids and seize the counterfeit goods within Ecuador?
In which scenario does the customs department/authority suspend the clearance of imported goods?
Where the customs find that the goods might infringe upon the rights of the IP owner, they may suspend the clearance of imported goods.
Who bears the liabilities and expenses related to suspension of the release of infringing goods?
The petitioner bears the liabilities and expenses related to suspension of the release of infringing goods.
Is the IP rights holder authorized to examine the goods, the clearance of which has been suspended?
Yes, the authorization to the petitioner to examine the merchandise needs to be made within the following 05 days. This diligence will be carried out in the presence of the customs authority and the costs will be in charge of the petitioner.
Is the IP rights holder authorized to request the information about the personal details of the importer and additional crucial piece of information concerning the consignment, which has been suspended from clearance?
Can the importer or the authorized representative of the goods, which have been suspended from clearance, request the information of the IP rights holder in question?
Within what timeframe the IP rights holder needs to confirm whether the goods are counterfeit or original after suspension?
10 business days
Is the IP rights holder required to produce an injunction order or evidence of court proceedings to detain the goods?
If the answer to the above question is 'Yes,' then what is the deadline to do so?
The same is supposed to be produced within 10 days. The same may be extended by initiating a request for additional 10 business days.
Does the IP rights holder need to pay an additional bond for the detention of goods?
If the answer to the above question is 'Yes,' then to what extent and how is the valuation calculated?
The valuation is calculated as follows:
The constitution of a guarantee, bank, or insurance company, within five (5) days following the execution of the order, equivalent to twenty percent (20%) of the FOB value of the merchandise, to guarantee the damages that are eventually caused to the importer or exporter, without prejudice to the responsibility of another order.
In the case of highly perishable goods, and without prejudice to the claim before the competent authority, there will be no suspension of the customs operation if the user so requests and constitutes a bank or insurance company guarantee, equivalent to one hundred (100%) of the FOB value of the merchandise, to guarantee the damages that may be caused by the alleged violation of intellectual property rights. In this case, a sample of the merchandise may be taken.
In the scenario where the goods detained or seized are found to be infringing the IPRs of the IP rights holder in question, what steps does the customs department/authority take?
Where such goods are found and detained, the customs inform both the parties to allow observance of the merchandise. The observation of the merchandise will be done without prejudice to the protection of confidential information, and may be witnessed by the customs user, who may not interfere in the procedure or hinder it.
Does the customs authority invite the rights holder and importer to join the proceedings? Are there any consequences of failure to join such proceeding, if any?
The rights holder has 10 business days to initiate infringement proceedings through the judicial system or have the suspension extended. If the copyright holder fails to act, this temporary suspension shall be lifted and the goods will be released.
Before disposal/destruction of infringing goods, does the rights holder need to submit a ‘no objection’ or concurrence document?
Are there any disadvantages of Custom Recordal of IPRs in Ecuador? If yes, then kindly give 2-3 points?
If an IP rights holder is not satisfied with the action taken by the customs department/authority, can he/she initiate separate legal proceedings to enforce his/her IP rights?
To establish if the goods are counterfeit before the court of justice, will the affidavit by the IP rights holder suffice or any other documentary requirement is there?
The court may require the submission of other documents as well.
Upon conclusion of proceedings before the Court of Justice, what are the possible remedies awarded by the court?
The possible remedies awarded by the court include destruction of goods outside the channels of commerce.
Is the rights holder under an obligation to inform customs authority when his Intellectual Property Right ceases to be valid/ he ceases to be the owner of such IPR?