What are the causes of counterfeiting and piracy in Ecuador?
The majority of counterfeit cases in Ecuador are found in Guayaquil, Manta, and Portoviejo, which are the hotspots of such goods. The enforcement measures are weaker and also the level of penalties for making and selling them are not deterrent in nature.
Which are the goods that most often face counterfeiting and piracy in Ecuador?
Pharmaceuticals and clothing most often face counterfeiting and piracy in Ecuador.
Does Ecuador have a well-established framework for the enforcement of Intellectual Property Rights (IPRs)?
What are the specific laws/orders/rules laid down in Ecuador for the enforcement of Intellectual Property Rights?
They are as follows:
The Organic Code on the Social Economy of Knowledge, Creativity, and Innovation (Code of Knowledge or INGENIOS) of 2016
The Intellectual Property Law
The Decision of the Andean Community No. 486 Establishing the Common Industrial Property Regime
The Regulations for the Common Industrial Property Regime
The Constitution (the version currently in force was enacted in October 2008)
The Decision 351
What are the different types of IPRs protected by IPR enforcement in Ecuador?
Trademarks, copyright, patents, and industrial designs are the different types of IPRs protected by IPR enforcement in Ecuador.
What are the general IPR enforcement obligations in Ecuador?
Parties to IP litigation must be represented by attorneys admitted to practice in Ecuador and must appear personally before the court. A special power of attorney can be granted by a party to their attorney to avoid appearing personally before the court. Also, the official language of the proceedings in Ecuador is Spanish. There is no other language option.
What are the essential to-dos before an IP rights holder initiates the enforcement proceedings?
As mentioned, since the language of the court is Spanish. Any documentation in a foreign language to be filed in the proceedings must be translated into Spanish.
The value of sending a letter before action depends on the facts and strategies of the case. For infringement committed by an individual or a small company, a cease and desist letter may be useful to quickly stop the infringement and save all the time and money that an infringement action entails. In cases where the estimated probabilities that the infringer stops the infringement after receiving a cease and desist letter are low or if the rights holder is looking to obtain an injunctive order or a seizure of infringing products, an infringement action should be initiated directly, without sending a letter before action. The courts may look favourably on the rights holder who first sends a cease and desist letter to an infringer and the ones who due to the lack of compliance of the demands are obliged to initiate proceedings.
Is there any limitation period for filing an infringement action?
Yes, this issue is still unsettled in Brazil. The IP Statute, enacted in 1996, specifically regulates the statute of limitations for IP infringement actions: 05 years. However, the Civil Code, a much broader statute enacted in 2002, establishes that the statute of limitations for lawsuits seeking damages is 03 years. While the Civil Code is a more recent statute, the IP statute is more specific, and courts are still struggling on whether to apply the 03 years or the 05 years statute of limitations for infringement actions and as limit on damage claims.
Which of the following IPR enforcement channels is/are available in Ecuador?
A) Government Authorities - Yes
B) Police Officials - Yes
C) Judiciary - Yes
D) Customs - Yes
Are civil actions available for the enforcement of IPRs?
Is the IP rights holder required to present reasonable evidence to support his claims of infringement against the opposing party in civil litigation?
Which of the following types of civil remedies is/are available in Ecuador?
A) Injunctions - Yes
B) Monetary Compensation - Yes
C) Raids - Yes
D) Seizures - Yes
E) Destruction - Yes
Are there any other civil remedies available in Ecuador than the ones mentioned above? If yes, then kindly explain in brief.
What is the approximate timeline of civil litigation related to IPR enforcement in Ecuador?
The duration of an IP infringement proceeding can vary widely depending on the type of action that is initiated:
An administrative action will generally last anywhere between 01 and 02 years.
Civil actions, on the other hand, are shorter processes that can last between 06 months and 01 year in the first instance and an additional 06 months on appeal.
Preliminary injunctions can be obtained in a couple of weeks.
It is not possible to agree on a binding timetable for the proceedings.
What happens if an IP rights holder abuses the enforcement measures in civil litigation?
Are there any disadvantages of civil litigation in Ecuador? If yes, then kindly give 2-3 points?
Is criminal prosecution available in Ecuador for the enforcement of IPRs?
Is the IP rights holder required to present reasonable evidence to support his claims of infringement against the opposing party in criminal prosecution?
Which is the responsible authority in Ecuador corresponding to the types of criminal remedies available? Also, mention the imprisonment term and the monetary fine.
A) Responsible Authority - Criminal Court
B) Imprisonment Term - Trademarks: up to 06 years; Patents: 06 months to 03 years (only upon re-commission of offence)
C) Monetary Fine - Trademarks: up to US $ 19,700.
Are there any other criminal remedies available in Ecuador than the ones mentioned above? If yes, then kindly explain in brief.
What happens if an IP rights holder abuses the enforcement measures in criminal prosecution?
Are there any disadvantages of criminal prosecution in Ecuador? If yes, then kindly give 2-3 points?
Are there any alternative dispute resolution mechanisms which allow parties to resolve their dispute out of court?
Arbitration is available for disputes that involve the private exercise of copyright (for example, disputes regarding a licence agreement, a copyright assignment, and so on).
Arbitration is not available for disputes that go beyond the private exercise of copyright and into the realm of public law. ADR is available for most contractual disputes. Even if there is no previous agreement to arbitrate, parties can agree to submit an existing dispute to ADR.
Are border control measures (customs) available in Ecuador for the enforcement of IPRs?
Is the IP rights holder required to present reasonable evidence to the customs authority/department to support his claims of infringement against the opposing party/importer of counterfeit goods?
What are the remedies available under border control measures (customs) in Ecuador?
The remedies available under border control measures (customs) in Ecuador include destruction of goods outside the channels of commerce.
Who must bear the costs of customs intervention during enforcement?
The applicant must bear the costs of customs intervention during enforcement.
What happens if an IP rights holder abuses the enforcement measures in Custom Recordal of IPRs?
If an IP rights holder commits any breach or fails to oblige the directions of the Customs, the Customs can release the goods from detention and allow their commercial exposure.
Which are the best practices for enforcement of IPRs in Ecuador?
Are there any risks involved in the enforcement of IPRs in Ecuador? If yes, then kindly give 2-3 points.