Ecuador – Latam Guideline
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- Ecuador – Latam Guideline
Trademarks
Patents
Designs
Customs
Data protection
Trademarks
WIPO-administered Treaties:
Contracting Party of the Madrid System: NO.
Trade Mark Law in force:
Decision 486 of the Andean Community. The Andean Pact Decision provides for one common trademark law among the member countries (Bolivia, Colombia, Ecuador, Peru). It does not provide a common registration procedure, but it provides for certain reciprocal rights to be available upon request of the trademark owner. For example, an entity that first applied for registration of a trademark in any Member Country, may lodge an opposition against a similar mark filed in the other Member Countries.
Classification:
Nice classification, 11th edition.
Multiclass Applications:
Not possible.
Registrable trademarks:
All distinctive and graphically representable signs, such as words, names, acronyms, letters, numbers, devices, emblems, holograms, coloRs, combinations or shades of colours, three-dimensional forms, the three-dimensional form of a good or its packaging, trade dress, sound marks and olfactory marks.
Formal filing requirements:
- Power of Attorney duly notarized and legalized within 60 days from filing date.
- Certified copy of the priority application and its translation into Spanish within 9 months from the filing date.
Examination:
Absolute grounds for refusal: YES.
Relative grounds for refusal: YES.
Opposition period:
30 working days from publication date.
Average time from filing to grant:
Approximately 8-12 months, unless any obstacles were raised.
Term of protection:
10 years from the date of registration.
Use requirements:
YES. Cancellation can be requested if the trademark has not been used for 3 years in any member state of the Andean Pact, counting from the date of registration. Partial cancellation is possible.
Renewal terms:
6 months prior to renewal date.
Grace period: 6 months.
Patents
WIPO-administered Treaties:
Contracting Party of the Paris Convention: YES
Contracting Party of the Patent Cooperation
Treaty (PCT): YES. Due term for entry into national phase: 31 months.
Patent Law in force:
Decision 486 – Andean Community (Cartagena Agreement Dec 1, 2000) and IP Law, December 9, 2016.
Types of protection available:
Patent of Invention; Utility Model.
Formal filing requirements:
- Power of Attorney duly notarized and legalized within 60 days from office action. 30 days for utility models. Extension of term available.
- Assignment document from the inventors duly notarized and legalized within 60 days from office action. Not required if applicant is the same as the PCT or if the change is recorded before the IB.
- Certified copy of priority application within 16 months from priority (not required for entry into national phase of PCT applications provided that PCT/IB304 form is available).
- Sequence listings must be filed in WIPO Standard ST.26 format.
Filing of the patent application in a foreign language:
NOT available.
Substantive examination must be requested by the applicant:
YES, the examination must be requested in the period of 6 months after publication. Payment of required fees is due within a 6-month term after receipt of official request.
Search report must be requested by the applicant:
NO
Observations by third parties:
YES, within 60 working-days from publication.
Opposition:
YES, within 60 working-days from publication.
Average time from filing to grant:
7-8 years
Term of protection for patents:
20 years from priority date in the case of Convention applications, international filing date (PCT applications), or national filing date (no priority claim).
Term of protection for utility models:
10 years from priority date in the case of Convention applications, international filing date (PCT applications), or national filing date (no priority claim).
Differences between utility model and patent:
UM suitable for utensils, instruments, tools, apparatus, devices, or any parts or improvements thereof, but not to chemical products, compositions, substances, methods or uses; lower threshold for inventive step.
Uses are excluded from patentability both for patents and utility models
Maintenance:
Yearly also during prosecution of the application.
Compulsory licensing:
YES
Designs
WIPO-administered Treaties:
Contracting Party of the Hague System: NO.
Applicable Law:
Decision 486 of the Andean Commission Community, local IP Law.
Grace period for filing applications, from disclosure:
1 year.
Multiple design applications -one application for different embodiments-available:
NO.
Formal filing requirements:
Identification of the applicant and the designer (including address and nationality).
Power of Attorney (notarized and legalized): 60 days from Office Action.
Brief description of the design.
Drawings. No specific number of views. Preferred 6-8 views.
Assignment document, if applicable: notarized and legalized.60 days from Office Action.
Priority document, if applicable, which must be certified.
International class, or the type of the goods the design intends to be applied to.
Locarno classification:
YES.
Deferred publication:
NO.
Registration Proceeding Outline:
Filing. Formal examination. Publication. Opposition. Grant.
If the application complies with the formal requirements, the IP office orders its publication for opposition purposes. The IP office does not examine ex officio the novelty of the application, except when an opposition is filed based on a prior right or on lack of novelty. Without prejudice thereto, when the industrial design manifestly lacks novelty, the office may reject registration.
Opposition:
YES, before granting, within 30 business days from publication date.
Average time from filing to grant:
13 months.
Term of Protection and Maintenance:
10 years from national filing.
Designs do not pay annuities.
Customs
Does it accept an administrative request for surveillance?
YES
Intellectual property rights protected through an administrative request for surveillance
Trademarks
Copyrights
Patents
Plant Varieties
Requirement to file for an application of an administrative request for surveillance
List and Registration of Trademarks
Certificate of Registrationc
PoA
Procedure (special aspects)
Although there is an Administrative surveillance procedure, once a counterfeit product is found, there is no simplified administrative procedure for the destruction of the goods.
Once there is a seizure of suspected counterfeits, a notification to the owner of rights must be sent. The holder then will have to confirm the measure at the border. At this moment, The Office ratifies the border measure. And immediately a complaint must be filed, which may be administrative, civil or criminal.
The main process will determine responsibilities and the destination of the products.
Data protection
Territory: Ecuador.
Data Protection Regulations: Organic Law on the Protection of Personal Data
Regulatory purpose: The purpose of the regulation is to guarantee the exercise of the right to the protection of personal data that is recognised in the Constitution of the Republic of Ecuador.
Parties:
- Data controller: Yes.
- Data Processor: Yes.
- Data Protection Officer: Yes.
- Supervisory Authority: Yes.
Principles:
- Principle of legality.
- Principle of loyalty.
- Principle of transparency.
- Principle of purpose.
- Principle of relevance and minimisation of personal data.
- Principle of proportionality of the processing.
- Principle of confidentiality.
- Principle of quality and accuracy.
- Principle of retention.
- Principle of security of personal data.
- Principle of proactive accountability.
- Principle of implementation favourable to the data subject.
- Principle of independence of control.
Obligations:
- Register of Processing Activities: Yes. The controller shall keep the National Register for the Protection of Personal Data up to date, in which, inter alia, the processing activities are recorded.
- Impact Assessments: Yes.
- Risk analysis: Yes.
- Technical and organisational security measures: Yes.
- Duty to inform: Yes.
- Data Protection Officer: Yes. The obligation to appoint a Personal Data Protection Officer is established when i) the processing is carried out by those who make up the public sector, ii) the activities of the controller or processor of personal data require permanent and systematised control due to the volume, nature, scope or purposes of the processing, iii) there is large-scale processing of special categories of data.
Data subjects’ rights:
- Right of Access: Yes.
- Right of rectification: Yes, the right to rectification and updating.
- Right of Suppression: Yes. Right of removal.
- Right to limitation: No.
- Right to portability: Yes.
- Right to object: Yes.
- Automated individual decisions, including profiling: Yes.
International transfers:
The Personal Data Protection Act provides for the international transfer of data to countries, organisations and legal entities designated as having adequate levels of protection. The Data Protection Authority must determine that a given international transfer complies with adequate levels of protection.
Sanctioning regime:
Yes, the Law provides for minor and serious penalties. Fines vary between 0.1% and 1% of the total income of the offender during the immediately preceding fiscal year. For the imposition of the fine, the Data Protection Authority will consider intentionality, repetition, recidivism and the nature of the damage caused by the infringement. The sanctioning regime will enter into force as of May 2023.
Certification or accreditation of compliance for companies:
Yes, the Organic Law on Personal Data Protection establishes that controllers and processors of personal data may voluntarily subscribe to codes of conduct, certifications, seal of protection marks, and standard clauses. There are as yet no specific requirements to be fulfilled in order to obtain the aforementioned certification.
Other highlights:
Special categories of data are established, including sensitive data, data of children and adolescents, health data and data of persons with disabilities. Credit data are mentioned within the chapter on special categories of data, however the Organic Law on Personal Data Protection does not expressly mention them as a special category of data.
Other related legislation:
The Regulation to the Organic Law on Personal Data Protection has not yet been published, nor has the Data Protection Authority been established.
