[Extracts**]
TABLE OF CONTENTS***
Articles
Preliminary Title ...................................................................................................... 1–3
Book I
Title I: Copyright and Related Rights
Chapter I: Copyright
Section I: General Principles ..................................................................... 4–7
Section II: Subject Matter of Copyright .................................................. 8–10
Section III: Owners of Rights................................................................ 11–17
Section IV: Content of Copyright
Part I: Moral Rights.............................................................................. 18
Part II: Economic Rights ................................................................ 19–27
Section V: Special Provisions on Certain Works
Part I: Computer Programs............................................................. 28–32
Part II: Audiovisual Works ............................................................ 33–35
Part III: Architectural Works ............................................................... 36
Part IV: Works of Three-Dimensional Art and Other Works ........ 37–41
Section VI: Transfer and Assignment of Rights
Part I: Transfer on Death................................................................ 42–43
Part II: Contracts for the Exploitation of Works
* Spanish title: Ley de Propiedad Intelectual.
Entry into force: May 19, 1998.
Source: Registro Oficial, Year II, No. 320 of May 19, 1998.
Note: Translation by the International Bureau of WIPO.
** Only the provisions concerning copyright, as well as the provisions concerning intellectual property in general, are reproduced here. Those concerning industrial property are published in Industrial Property Laws and Treaties, ECUADOR— Text 1–001.
*** Added by the International Bureau of WIPO.
I. Contracts in General ................................................................... 44–49
II. Publishing Contracts.................................................................. 50–64
III. Phonographic Recording Contracts.......................................... 65–68
IV. Performance Contracts............................................................. 69–74
V. Broadcasting Contracts ............................................................. 75–76
VI. Contracts for Audiovisual Works ............................................ 77–78
VII. Advertising Contracts ................................................................... 79
Section VII: Limitation of and Exceptions to the Author’s Economic Rights
Part I: Term .................................................................................... 80–81
Part II: Public Domain ......................................................................... 82
Part III: Exceptions ........................................................................ 83–84
Chapter II: Related Rights
Part I: General Provision ................................................................ 85–86
Part II: Performers .......................................................................... 87–91
Part III: Phonogram Producers....................................................... 92–96
Part IV: Broadcasting Organizations ........................................... 97–101
Part V: Other Related Rights...................................................... 102–104
Part VI: Remuneration for Private Copying............................... 105–108
Chapter III: Collective Management Societies......................................... 109–119
Book II: Industrial Property
Chapter I: Protection of Inventions .................................................................. 120
Chapter II: Patents
Section I: Patentability Requirements ............................................... 121–126
Section II: Owners............................................................................. 127–130
Section III: Grant of Patents .............................................................. 131–147
Section IV: Rights Conferred by the Patent ...................................... 148–150
Section V: Invalidation of the Patent ................................................ 151–152
Section VI: Lapse of the Patent ................................................................. 153
Section VII: Compulsory Licensing.................................................. 154–158
Chapter III: Utility Models ....................................................................... 159–162
Chapter IV: Protection Certificates .......................................................... 163–164
Chapter V: Industrial Designs .................................................................. 165–173
Chapter VI: Layout-Designs (Topographies) of Semi conductor Circuits174–182
Chapter VII: Undisclosed Information ..................................................... 183–193
Chapter VIII: Trademarks
Section I: Requirements for Registration .......................................... 194–200
Section II: Registration Procedure .................................................... 201–215
Section III: Rights Conferred by the Trademark ............................... 216–219
Section IV: Cancellation of Registration........................................... 220–226
Section V: Invalidation of Registration............................................. 227–228
Chapter VII: Trade Names ....................................................................... 229–234
Chapter VIII: Trade Dress ........................................................................ 235–236
Chapter IX: Geographical Indications ...................................................... 237–247
Book III: Plant Varieties
…2
Book IV: Unfair Competition ................................................................................. 284–287
Title I: Protection and Enforcement of Intellectual Property Rights
Chapter I: General Principles ................................................................... 288–293
Chapter II: Intellectual Property Litigation
Section I: Hearings ............................................................................ 294–304
Section II: Provisional and Precautionary Measures......................... 305–318
Chapter III: Offenses and Sanctions ......................................................... 319–331
Book V: Administrative Protection of Intellectual Property Rights ....................... 332–345
Ecuadorian Institute of Intellectual Property (IEPI)
1 See Industrial Property Laws and Treaties, ECUADOR— Text 1–001 (Editor’s note).
2 Not reproduced here (Editor's note).
3 See Industrial Property Laws and Treaties, ECUADOR— Text 1–001 (Editor’s note).
Chapter I: Aims of the Institute ........................................................................ 346
Chapter II: Organization and Functions
Section I: General Provisions ............................................................ 347–348
Section II: President of the IEPI........................................................ 349–351
Section III: Management Board ........................................................ 352–353
Section III: National Directorates...................................................... 354–361
Section IV: Intellectual Property, Industrial Property and Plant Varieties and
Copyright Committees ...................................................................... 362–365
Section V: Economic Resources and Fees ........................................ 366–369
Final Title
General Provisions ........................................................................................... 370–376
Collective Rights ..................................................................................................... 377
Repeal Provisions .................................................................................................... 378
Transitional Provisions
Final Provisions
Intellectual property consists of the following:
1. copyright and related rights;
2. industrial property, which itself encompasses the following among other things:
(a) inventions;
(b) industrial designs;
(c) layout-designs (topographies) of integrated circuits;
(d) undisclosed information and commercial and industrial secrets;
(e) trademarks, service marks and commercial slogans;
(f) the distinctive features of stores and business establishments;
(g) trade names;
(h) geographical indications;
(i) any other intellectual creation intended for agricultural, industrial or commercial use;
3. new varieties of plants.
The provisions of this Law shall neither limit nor obstruct the rights enshrined in the
Convention on Biological Diversity or in any laws enacted by Ecuador on that subject.
3. The Ecuadorian Institute of Intellectual Property [Instituto Ecuatoriano de la Propiedad Intelectual] (IEPI) is the administrative body competent to sponsor, promote, provide for, protect and defend, on behalf of the Ecuadorian State, the intellectual property rights recognized in this Law and in international treaties and conventions, without prejudice to civil and criminal actions on such matters, which shall be brought before the Judiciary.
Chapter I Copyright
All works, performances, productions or broadcasts shall be protected, regardless of the country of origin of the work or the nationality or residence of the author or owner of rights. This protection shall likewise be recognized regardless of the place of publication or disclosure.
The recognition of copyright and related rights shall not be subject to registration or deposit or to compliance with any formality.
Related rights arise from the need to ensure the protection of the rights of performers and phonogram producers.
(a) the ownership and other rights inherent in the physical medium in which the work is incorporated;
(b) any industrial property rights that may subsist in the work;
(c) any other intellectual property rights recognized by law.
wish.
without incorporated sound, which is intended mainly to be shown with the aid of projection
apparatus or any other means of communicating the images and sound, regardless of the characteristics of the material medium in which it is embodied.
territory by unknown or unidentified authors who are presumed to be nationals of the country or members of its ethnic communities, which are handed down from generation to generation in such a way that they reflect the traditional artistic or literary aspirations of a community.
lithograph. For the purposes of this Law, the definition does not include photographs, architectural works and audiovisual works.
Protected works shall include the following among other things:
(a) books, pamphlets, printed matter, correspondence, articles, short stories, tales, poems, histories, critiques, essays, messages, theater scripts, cinematographic works, television programs, lectures, speeches, lessons, sermons, pleadings in court, memoranda and other works of similar nature, expressed in whatever form;
(b) collections of works, such as anthologies or compilations and databases of all kinds which, by reason of the selection or arrangement of their contents, constitute intellectual creations, without prejudice to the copyright subsisting in the said material or data;
(c) dramatic and dramatico-musical works, choreographic and mimed works and generally all staged works;
(d) musical compositions with or without words;
(e) cinematographic works and any other audiovisual works;
(f) sculptures and works of painting, drawing, engraving and lithography, and graphic short stories, cartoons and comics, including sketches or mockups and other three- dimensional works;
(g) projects, plans, models and designs for architectural works and works of engineering;
(h) illustrations, graphs, maps and drawings relating to geography, topography and science in general;
(i) photographic works and works expressed by processes analogous to photography;
(j) works of applied art, except that their artistic value may not be dissociated from the industrial character of the object in which they are incorporated;
(k) computer programs;
(l) adaptations, translations, arrangements, revisions, updates and annotations; compendia, summaries and excerpts and other transformations of a work that have been made on
the express authority of the authors of the original works, and without prejudice to their rights.
Without prejudice to the industrial property rights, the titles of radio or television programs and newsreels, newspapers, magazines and other periodical publications shall be protected for a year following the appearance of the last issue or the public airing of the last program, except in the case of annual publications or productions, in which case the term of protection shall be three years.
(a) translations and adaptations;
(b) revisions, updates and annotations;
(c) summaries and excerpts;
(d) musical arrangements;
(e) all other transformations of a literary or artistic work.
Creations or adaptations based on a tradition expressed within a group of individuals and reflecting the expressions of the community concerned, its identity, its values handed down by word of mouth, by imitation or by other means, whether use is made of literary language, music, games, mythology, rituals, customs, crafts, architecture or other skills, shall respect the rights of the communities in accordance with the Convention that prevents the exportation, importation or transfer of cultural property and also the treaties adopted under the auspices of WIPO for the protection of such expressions against unlawful exploitation.
The following do not qualify for protection:
(a) the ideas embodied in the works, processes, operating methods or mathematical concepts in themselves, systems or the ideological or technical content of scientific works or the industrial or commercial exploitation thereof;
(b) legal and regulatory provisions, judicial decisions and the enactments, agreements, deliberations and rulings of public bodies, including official translations thereof.
The ownership of rights shall be determined according to the provisions of the law of the country of origin of the work, in accordance with the provisions of the 1971 Paris Act of the Berne Convention.
In a work of indivisible joint authorship, the rights shall belong jointly and pro indivisoto the co-authors, unless otherwise agreed.
That person, whether natural person or legal entity, shall be considered the owner of the rights in a collective work who is mentioned as such on the work.
In works created on commission, ownership shall accrue to the commissioning party in a non- exclusive form whereby the author shall retain the right to exploit them in a manner different from that provided for in the contract, provided that this causes no unfair competition.
Part I Moral Rights
(a) the right to claim authorship of his work;
(b) the right to keep the work unpublished or anonymous or to demand that his name or pseudonym be mentioned whenever it is used;
(c) the right to object to any distortion, mutilation, alteration or modification of the work that might prejudice his honor or reputation;
(d) the right of access to the sole or a rare copy of the work that is in a third party’s possession with a view to exercising the right of disclosure or any other right that may accrue to him;
(e) the right to claim indemnification for damages and prejudice, independently of the other actions provided for in this Law, in the event of violation of any of the rights provided for in the foregoing subparagraphs.
This right shall not allow it to be demanded that the work be moved, and access to the work shall be had in the place and manner that cause the least inconvenience to the possessor, who shall be indemnified where appropriate for any damages and prejudice caused him.
On the death of the author, the exercise of the rights provided for in subparagraphs (a)and
(c)above shall accrue to his successors in title without limitation in time.
The successors in title may exercise the right provided for in subparagraph (b)for a period of
70 years following the author’s death.
Part II Economic Rights
(a) reproduction of the work in any form or by any process;
(b) communication of the work to the public by any medium serving to disseminate words, signs, sounds or images;
(c) distribution of originals or copies of the work to the public by means of sale, rental or lease;
(d) importation;
(e) translation, adaptation, arrangement or other transformation of the work.
The exploitation of the work in any form, and especially in any of the forms enumerated in this Article, shall be unlawful without the express authority of the owner of the copyright, subject to the exceptions specified in this Law.
(a) stage performances, recitals, dissertations and public performances of dramatic;
dramatico-musical, literary and musical works in any medium or by any process;
(b) the public projection or showing of cinematographic and other audiovisual works;
(c) the broadcasting or communication to the public of any works by any medium that serves to disseminate, by wireless means, signs, sounds or images, or the digital representation thereof, whether simultaneously or not.
The transmission of coded program-carrying signals is likewise an act of communication to the public in so far as means of decoding the signals are made available to the public by the broadcasting organization or with its consent.
For the purposes of the foregoing two paragraphs, satellite means any satellite that operates on frequency bands reserved by telecommunications legislation for the dissemination of signals for reception by the public or for non-public individual communication, provided that in the latter case the circumstances in which individual reception of the signals takes place are comparable to those applicable in the first case;
(d) transmission of works to the public by wire, cable, optic fiber or other comparable medium, whether on subscription or not;
(e) the retransmission of a broadcast work by radio, television or any other wire or wireless means where it is effected by an entity different from the original one;
(f) the emission, transmission or reception of the broadcast work in a place accessible to the public by means of any appropriate device;
(g) public presentation and exhibition;
(h) public access to computer databases by telecommunication where the said databases incorporate or constitute protected works;
(i) the diffusion by any known or yet to be known process of signs, words, sounds or images, or the representation thereof, or other forms of expression of works.
Any communication shall be considered public where it goes beyond the strictly domestic circle.
Rental means the making available of originals and copies of a work for use for a limited time in exchange for a direct or indirect economic or commercial benefit. The act of making available for exhibition purposes and of doing so for consultation on the spot shall be excluded from the concept of rental for the purposes of this provision.
Lending means the making available of originals and copies of a work through establishments accessible to the public for use for a limited time without direct or indirect economic or commercial benefit. The exclusions specified in the foregoing paragraph shall likewise apply to public lending.
The right of distribution by sale shall be exhausted on the first such sale, and solely with respect to successive resales within the country, but the exclusive right to authorize or prohibit the rental and public lending of the copies sold shall be neither exhausted nor otherwise affected.
The author of an architectural work or work of applied art may not object to the owner renting the building or work.
(a) the removal or alteration of electronic rights management information without the appropriate authority;
(b) the distribution, importation or communication to the public of the original or copies of the work in the knowledge that electronic rights management information has been removed or altered without authority.
Electronic rights management shall be taken to mean that embodied in copies of works or appearing in connection with the communication of a work to the public which identifies the work,
the author, the owners of any copyright or related right or information on the terms and conditions governing the use of the work, as well as the number and codes that represent such information.
Disposal of the physical object shall not imply any assignment or authorization in relation to the copyright in the work embodied in it.
The transfer of the exploitation rights in future works shall be valid if they are identified either specifically or by genre, but in that case the contract may not have a term in excess of five years.
Part I Computer Programs
The owner shall in addition be entitled to exercise the moral rights in the work, including the right to decide on its disclosure, in his own name.
The producer shall have the exclusive right to make, or to authorize or prohibit the making of, modifications to or successive versions of the program and also programs derived from it.
The provisions of this Article may be amended by agreement between the authors and the producer.
(a) make a copy of the machine-readable version of the program (object code) for security or back-up purposes;
(b) store the program in the internal memory of the equipment, whether or not the stored program is lost when the equipment is switched off, for the sole purpose of using the program and to the extent necessary;
(c) adapt the program for exclusive personal use, unless expressly prohibited and provided that the use is confined to the normal use provided for in the license. The acquirer may not on any ground transfer the physical medium embodying the program so adapted, or use it in any other way without express authority, according to general rules.
The authority of the owner of the rights shall be sought for any other use, including reproduction for the purposes of personal use or exploitation of the program by two or more persons via networks or other comparable systems that are known or may yet become known.
32. The only exceptions to copyright applicable to computer programs shall be those laid down in Articles 30 and 31.
The provisions contained in this Part shall be so interpreted that their application does not prejudice the normal exploitation of the work or the legitimate interests of the owner of the rights.
Part II Audiovisual Works
work:
(a) the director or maker;
(b) the authors of the plot, the adaptation and the screenplay and dialogue;
(c) the author of the music specially composed for the work;
(d) the artist in the case of animated cartoons.
reproduced, the audiovisual work shall be protected as an original work.
The authors of the existing works may exploit their contributions in a different genre, but the right to exploit the joint work, and also the right to exploit the works specially created for the audiovisual work, shall belong exclusively to the owner within the meaning of the following Article.
The owner shall in addition be entitled to exercise the moral rights in the work, including the right to decide on its disclosure, in his own name.
All the foregoing shall be understood as being without prejudice to the express stipulations and reservations made between the authors and the producer.
Part III Architectural Works
Such alterations as may be necessary during or after the construction work shall require only authorization by the architect who designed the project, who may not deny such authorization unless he considers that the proposed alteration would affect the aesthetic or functional properties of his work.
The acquisition of an architectural project shall imply the right of the acquirer to carry out the projected work, but the written consent of its creator shall be necessary, in terms specified by him and in accordance with the Law on the Exercise of the Profession of Architect [Ley de Ejercicio Profesional de la Arquitectura], for its use in other works.
Part IV Works of Three-Dimensional Art and Other Works
The exceptions provided for in the foregoing paragraph shall not affect the copyright in the work of which the image forms part.
Part I Transfer on Death
Civil Code.
Where the majority make use of the work or exploit it they shall deduct from the overall economic proceeds whatever costs have been incurred and shall hand over to those who were not able to give their consent the share accruing to them.
Part II Contracts for the Exploitation of Works
I. Contracts in General
stated and to the territorial scope specified in the contract. All rights regarding which no express stipulation has been made shall be considered reserved, and in the absence of any provision on territorial scope it shall be taken to be the territory of the country in which the contract was executed.
Assignment of the right of reproduction shall constitute assignment also of the right of distribution by sale of those copies whose reproduction has been authorized where this may be naturally inferred from the contract or is essential for the purpose of the contract to be fulfilled.
In the case of non-exclusive assignment, the assignee shall be authorized to exploit the work in the manner specified in the contract.
Any stipulation whereby the author undertakes not to create any work in the future shall likewise be null and void.
Where such works have been made in the course of dependent employment relations, the author shall retain the right to independent publication in the form of a collection.
The provisions of this Article may only be amended by common consent between the parties.
II. Publishing Contracts
Where the alterations make the edition more costly, the author shall be obliged to defray the costs incurred on account of them, unless otherwise agreed. Where the alterations entail fundamental changes to the content or form of the work and are not accepted by the publisher, the work shall be considered withdrawn, and the author shall be obliged to pay for any damages and prejudice to third parties.
(a) the title of the work and name or pseudonym of the author, a statement that the work is anonymous, or the name of the compiler or adapter or author of the version concerned, as the case may be;
(b) the reserved rights notice, with an indication of the name of the copyright owner, the abbreviated name of the management society that represents him where it so requires, and the year and place of first publication;
(c) the names and addresses of the publisher and printer;
(d) the International Standard Book Number (ISBN), in accordance with Article 7 of the
Book Promotion Law [Ley de Fomento del Libro].
work.
III. Phonographic Recording Contracts
(a) the title of the work, the names of the authors or their pseudonyms and that of the author of the version, as the case may be;
(b) the names of the performers, instrumental or choral ensembles shall be mentioned;
(c) the reserved rights notice in the form of the circled P symbol followed by the year of first publication;
(d) the business style of the phonogram producer, or the mark identifying him or it;
(e) the phrase: “All rights of the author and phonogram producer are reserved. Any reproduction, rental or lending to the public, or any form of public communication of the phonogram is prohibited”;
(f) as a compulsory feature, the printed serial number of the production run.
Any information that cannot be included for want of sufficient space on the labels of the copies shall be compulsorily printed on the jacket, sleeve or inlay card.
68. The provisions contained in Articles 64 and 66 shall be applicable as appropriate to the literary work that has been used as the text for a musical work or for recital or reading and subsequent fixing on a phonogram for the purposes of reproduction and sale.
IV. Performance Contracts
Such contracts may be entered into for a specified term or for a specified number of public performances.
The provisions on the performance contract shall be applicable to other forms of communication to the public, as appropriate.
Where the same impresario has other works by different authors performed, the authority shall provide for the retention of the surpluses from collection, after the royalties for the works concerned and other costs have been met, up to the total of the amount owed to the unpaid author. In any event that author shall have the right to terminate the contract and withdraw the work from the impresario’s control, and shall be entitled to bring such other actions as may be appropriate.
73. The impresario may terminate the contract, forfeiting any advances that he may have paid the author, if the performance of the work is stopped on account of poor audience reception of the first three performances, or unforeseen circumstances, force majeureor any other circumstance beyond the impresario’s control.
V. Broadcasting Contracts
These provisions shall apply also to transmissions effected by wire, cable, optic fiber or another comparable means.
VI. Contracts for Audiovisual Works
VII. Advertising Contracts
Without prejudice to what is specified by the parties, the contract shall permit the communication of announcements or publicity for a period of up to six months following the first such communication, with each additional six-month period having to be paid for separately.
The contract shall specify the material medium in which the work is to be reproduced in the case of the reproduction right, and the number of copies constituting the print run where applicable. Every additional print run shall be by express agreement.
The provisions on publishing contracts, contracts for phonographic recording and contracts for audiovisual productions shall be subsidiarily applicable to these contracts.
Part I Term
In the case of works of joint authorship, the term of protection shall run from the date of the death of the last surviving co-author.
In the case of posthumous works, the period of 70 years shall begin to run on the date of the author’s death.
Where the author of an anonymous work does not make himself known in the course of the
70 years following the date of first publication, the work shall pass into the public domain. If, before that period expires, the name of the author is revealed, the provisions of the first paragraph of this Article shall apply.
If the identity of the author of a work published under a pseudonym is not known, it shall be considered anonymous.
If a collective work is disclosed in parts, the term of protection shall run from the date of publication of the last installment, part or volume.
Part II Public Domain
Part III Exceptions
(a) inclusion in a given work of fragments of other, different works in written, audio or audiovisual form, and also that of isolated works of three-dimensional, photographic, figurative or other character, provided that the works have already been disclosed and that their inclusion is by way of quotation or for analysis, comment or critical assessment; such use may only take place for teaching or research purposes to the extent justified by the purpose of the incorporation, and the source and the name of the author of the work used shall be stated;
(b) the performance of musical works at official events connected with State institutions or religious ceremonies where attendance is free of charge, provided that the participants in the communication receive no specific remuneration for their involvement in the event;
(c) the reproduction, distribution and communication to the public of articles and comments on current events and matters of collective interest that are disseminated by social communication media, provided that the source and the name of the author are
given if the original article mentions them, and that no reserved rights notice has been included;
(d) dissemination by the press or broadcasting for informative purposes of lectures, speeches and similar works disclosed at assemblies, public meetings or public debates on matters of general interest;
(e) the reproduction of news of the day or miscellaneous news items that have the character of mere press information published by the press or broadcast, provided that the origin is stated;
(f) the reproduction, communication and distribution of works permanently located in public places by means of photography, painting, drawing or any audiovisual process, provided that the name of the author of the original work and the place in which it is located are mentioned, and that the purpose is strictly the dissemination of art, science and culture;
(g) the reproduction in a single copy of a work forming part of the permanent collection of a library or archive for the sole purpose of replacing it where necessary, in so far as the said work is not available commercially;
(h) ephemeral recordings that are immediately destroyed after broadcasting;
(i) the reproduction or communication of a disclosed work for the purpose of judicial or administrative proceedings;
(j) the parodying of a disclosed work, provided that this does not carry the risk of confusion with that work, or do harm to the work or to the reputation of the author or performer, as the case may be;
(k) lessons and lectures given in universities, colleges, schools and teaching and training centers in general, which may be annotated and collected by those to whom they are addressed for their personal use.
Chapter II Related Rights
Part I General Provision
Part II Performers
performances in so far as such acts may be prejudicial to their reputation. Those rights shall not lapse on the death of their owners.
Without prejudice to the exclusive right accorded them by the foregoing Article, performers shall have the right, in the cases provided for in the foregoing paragraph, to receive remuneration for the communication to the public of a phonogram containing their performances.
Unless otherwise agreed, remuneration collected pursuant to the foregoing paragraph shall be shared equitably between the phonogram producers and the performers in accordance with international conventions, independently of the economic rights of the author that are already provided for in the articles relating thereto.
Part III Phonogram Producers
(a) direct or indirect reproduction of their phonograms by any means and in any form;
(b) distribution to the public;
(c) importation, by any means, of lawful and unlawful reproductions of phonograms.
Part IV Broadcasting Organizations
(a) retransmission of their broadcasts by any means or process;
(b) fixation and reproduction of their broadcasts, including that of any isolated image where it was first made accessible to the public in the broadcast;
(c) communication of their broadcasts to the public where it is done in places to which they have access against payment of an admission charge.
Part V Other Related Rights
Audiovisual recordings shall be understood to be fixations of moving pictures, with or without sound, that cannot be described as audiovisual works.
Part VI Remuneration for Private Copying
The remuneration shall accrue in equal parts to the authors, performers and phonogram producers in the case of phonograms and videograms, and shall likewise accrue in equal shares to the authors and publishers in the case of literary works.
Compensatory remuneration for the private copying of phonograms and videograms shall be collected by a single collecting agency common to authors, performers and phonogram and videogram producers, the sole corporate purpose of which shall be the collection on their behalf of the compensatory remuneration for private copying. In the same way, the collection of the compensatory fees for reprographic reproduction shall be carried out by a single collecting agency common to authors and publishers.
These management bodies shall be authorized by the IEPI and shall abide by the provisions of this Law.
(a) tapes or other material capable of embodying a sound or audiovisual fixation;
(b) reproduction equipment.
The percentage rate of compensatory remuneration for private copying shall be calculated according to the price of the recording material or reproduction apparatus, and shall be determined and laid down by the Board of Directors of the IEPI.
Failure to pay compensatory remuneration shall be punished with a fine corresponding to 300 per cent of what should have been paid.
Producers of phonograms or the owners of rights in the works to which this paragraph relates, or their licensees, shall not be liable for this remuneration in respect of material that they import.
Private copying done on material or with reproduction apparatus for which compensatory remuneration has not been paid constitutes a violation of the relevant copyright and related rights.
Chapter III
Collective Management Societies
Membership of a collective administration society is voluntary for owners of copyright or related rights.
The powers of representation conferred under the foregoing Article shall not detract from the right of the owners of rights to assert directly such rights as may be accorded to them in this Book.
112. Collective management societies shall be authorized by the National Directorate of Copyright and subject to its inspection, supervision and control. The National Directorate of Copyright may, either ex officio or at the request of a party, take control of a collective administration society if it does not conform to the provisions of this Chapter and the Regulations. Where it does take control, acts and contracts have to be authorized by the National Director of Copyright in order to be valid. The following shall be requirements for collective management societies to be licensed to operate:
(a) the statutes of the applicant society must meet the requirements laid down in this
Chapter;
(b) the data submitted and information supplied must show that the applicant society meets the prescribed conditions for efficient administration of the rights that are to be entrusted to its management.
(a) the conditions for the admission to membership of the owners of rights who apply for it and prove their eligibility;
(b) the fact that the General Assembly, composed of members of the society, is the supreme governing body and has been given prior authorization to approve tariff regulations and rule on the percentages to be set aside for administrative costs. That percentage may not in any event exceed 30 per cent of sums collected, the balance having to be distributed equitably among the various owners of rights in proportion to the actual exploitation of works, performances or phonograms, as the case may be.
Without prejudice to the foregoing, in all cases of suspension of an operating license, the society concerned may, under the supervision of the National Directorate of Copyright, collect royalties for the authors that it represents.
The proceeds from collection shall be deposited in a separate account in the name of the National Directorate of Copyright, and shall be transferred to the society once the decision to reinstate its operating license has been taken.
Copyright, provided that the requirements of form laid down in the statutes and in this Chapter for the introduction of the tariffs have been met.
The administrative, police or municipal authorities, which in every case perform the functions of supervision and inspection and in the course of their work learn of activities liable to give rise to the remuneration specified in the foregoing Article are obliged to inform the management societies accordingly.
The same provision shall apply to collective management societies where they have granted licenses for works that they do not represent, having in any event to assure the licensee of undisturbed use and enjoyment of the corresponding rights.
Chapter I Protection of Inventions
All protection given to industrial property shall likewise ensure the protection of the country’s biological and genetic heritage; consequently, the grant of product or process patents that relate to elements of the said heritage shall be conditional on those elements having been acquired legally.
Chapter II Patents
Prior art consists of everything that has been made accessible to the public by written or oral description, use or any other means prior to the filing date of the patent application, or where applicable the date of recognized priority.
For the sole purpose of determining novelty, prior art shall be regarded as including also the contents of any patent application pending before the National Directorate of Industrial Property whose filing or priority date is earlier than the priority date of the patent application under examination.
No account shall be taken, when patentability is ascertained, of disclosure of the contents of the patent within the year prior to the filing date of the application in the country, or within the year preceding the priority date if priority has been claimed, in so far as the said disclosure is attributable to
(a) the inventor or his successor in title;
(b) an office responsible for the grant of patents in any country that contravenes applicable legal provisions by publishing the contents of the patent application filed by the inventor or his successor in title;
(c) a third party, including public officials or State agencies, who may have obtained the information directly or indirectly from the inventor or his successor in title;
(d) an official order;
(e) a manifest abuse to the detriment of the inventor or his successor in title;
(f) the fact that the applicant or his successor in title has shown the invention at an officially recognized exhibition or fair, or where for academic or research purposes it has had to be made public for development to continue. In that case the person concerned shall, on filing his application, submit a declaration stating that the invention actually was shown, together with the appropriate certificate.
A pending patent application that has not been published shall be treated as undisclosed information and protected as such under this Law.
(a) discoveries, scientific principles and theories and mathematical methods;
(b) material that already exists in nature;
(c) literary and artistic works, or any aesthetic creation;
(d) schemes, rules and methods for conducting intellectual activities, playing games or doing business, and also computer programs or computer software in so far as they do not form part of an industrially applicable invention;
(e) methods of presenting information.
(a) inventions whose commercial exploitation necessarily has to be prevented in the interest of public policy or morality, including the protection of the health or life of persons or animals, the preservation of plants and the avoidance of serious damage to the environment or ecosystem;
(b) diagnostic, therapeutic and surgical methods for treating persons or animals;
(c) plants and animal breeds, and also essentially biological processes for breeding plants or animals.
For the purposes of the provisions of subparagraph (a) above, the following shall be considered contrary to morality and therefore unpatentable:
(a) processes for cloning human beings;
(b) the human body and its genetic identity;
(c) the use of human embryos for industrial or commercial purposes;
(d) processes for the modification of the genetic identity of animals that cause them to suffer without any substantial medical benefits to human beings or animals being obtained thereby.
inter vivos transaction or on death.
The owners of patents may be natural persons or legal entities.
If two or more persons have made an invention jointly, the right shall belong jointly to all of them or to their successors in title.
A person who has confined himself to lending assistance in the making of the invention, without actually contributing inventive activity, shall not be considered either an inventor or a joint inventor.
Where two or more persons make the same invention independently of each other, the patent shall be granted to the one who files the first application or who claims the earliest priority, or to his successor in title.
The same provision shall apply where a work contract does not require the employee to engage in inventive activity, if the said employee has made the invention using data or facilities made available to him by reason of his employment.
In the case provided for in the foregoing paragraph, the employee inventor shall have the right to a single payment of equitable remuneration in which due regard shall be had to the information and facilities provided by the firm and the personal input of the worker, and also the industrial and commercial importance of the patented invention, which, in the absence of agreement between the parties, shall be determined by the competent court on the advice of the IEPI. In the circumstances provided for in the first paragraph of this Article, the employee inventor shall have a similar right where the invention is of exceptional importance and goes beyond the implicit or explicit subject matter of the work contract. The right to remuneration provided for in this paragraph is unrenounceable.
In the absence of contractual provision or agreement between the parties on the amount of the said remuneration, it shall be set by the competent court on the advice of the IEPI. That remuneration shall be unrenounceable.
Where inventions have been made in the course or on the occasion of academic activity in universities or educational institutions, or with the use of the facilities or under the direction thereof, ownership of the patent shall accrue to the university or educational institution unless otherwise specified. The person who conducted the research shall be entitled to the remuneration provided for in the foregoing paragraphs.
Where in the case of inventions made in the course of employment relations the employer is a legal entity in the public sector, the latter may surrender part of the economic benefits of the innovations to its employee inventors in order to stimulate research activity. Those entities that receive public sector finance for their research shall reinvest part of the royalties that they receive for the marketing of such inventions with a view to generating a steady supply of research funds and stimulating researchers by making them participants in the proceeds from their innovations.
The application filed in Ecuador may not claim the priority of subject matter not included in the priority application, although the text of the specification and the claims do not necessarily have to correspond.
Property and shall contain the elements required by the Regulations.
(a) the title or name of the invention, with its description, an abstract, one or more claims and whatever plans and drawings may be necessary.
Where the invention refers to biological material that cannot be properly identified in the description, that material shall be deposited with a depositary institution authorized by the IEPI;
(b) proof of payment of the prescribed fee;
(c) a copy of the patent application filed abroad where priority is claimed;
(d) any other elements that may be required by the Regulations.
134. The National Directorate of Industrial Property shall, on receiving the application, except where the documents referred to in subparagraphs (a)and (b) of the foregoing Article have not been filed, certify the date and time at which the application was filed and shall assign a serial number to it which must be consecutive and continuous. If the said documents are missing, the application shall not be accepted for processing, neither shall it be granted a filing date.
137. The applicant may, before the publication referred to in Article 141, divide, amend, specify or correct the application, but he may not alter the subject matter of the invention or broaden the content of the national disclosure.
Every divisional application shall be accorded the filing date and, where applicable, the priority date of the divided application.
The converted application shall retain the filing date of the original application, and shall be subjected to the processing prescribed for the new title.
If it emerges from the examination that the application does not meet the said requirements, the National Directorate of Industrial Property shall inform the applicant so that he may complete it within a period of 30 days from the date of notification. The said period shall be renewable once for the same amount of time without loss of priority. On expiry of that period without any response from the applicant, the National Directorate of Industrial Property shall declare the application abandoned.
Until such time as publication takes place, the file shall be in abeyance and may only be inspected by third parties with the applicant’s consent or where the applicant has initiated judicial or administrative proceedings against third parties on the basis of the application.
The period mentioned in the foregoing paragraph may be extended by a period of the same duration at the request of the party interested in filing opposition if he proves his need to inspect the description, claims and background of the application.
Any person who files opposition without a statement of grounds shall be liable for damages and prejudice, which may be sought before the competent court.
144. The National Directorate of Industrial Property shall be obliged to conduct an examination of the patentability of the invention within a period of 60 days from the expiry of the periods specified in Articles 142 and 143. For the purposes of that examination, it may request reports from experts or scientific or technological bodies considered competent to issue an opinion on the novelty, inventive step and industrial applicability of the invention. It may also, if it sees fit, request reports from the competent national offices of other countries. All the information shall be
brought to the notice of the applicant, in order to guarantee his right to be heard under the conditions laid down in the Regulations.
The National Directorate of Industrial Property may recognize the findings of such examinations as technical rulings attesting the invention’s compliance with patentability criteria.
The technical rulings issued by the competent offices of countries or international organizations with which the IEPI has signed cooperation and technical assistance agreements shall be recognized by the National Directorate of Industrial Property for the purposes of the grant of the patent.
The class or classes to which a given invention belongs shall be decided by the National Directorate of Industrial Property in the certificate of grant, without prejudice to any information that the applicant may have given.
Where the subject matter of the patent is a process, the protection afforded by the patent shall extend to products obtained directly by means of the process.
(a) manufacturing the patented product;
(b) offering the patented product for sale, selling it or using it, or importing it or storing it for any of those purposes;
(c) using the patented process;
(d) carrying out any of the acts mentioned in subparagraphs (a)and (b) in relation to a product obtained directly by means of the patented process;
(e) supplying or offering means of putting the patented invention into practice;
(f) any other act or fact that has the effect of making all or part of the patented invention, or its effects, available to the public.
(a) where the use takes place in a private circle and on a non-commercial scale;
(b) where the use takes place for non-profit-making purposes at an exclusively experimental, academic or scientific level;
(c) in the case of the importation of a patented product that has been placed on the market in any country with the consent of a licensee or of any other authorized person.
151. The Intellectual Property Committee of the IEPI may, either ex officio or at the request of a party, invalidate the registration of a patent in the following cases by means of the review procedure:
(a) if the subject matter of the patent is not an invention in terms of this Chapter;
(b) if the patent has been granted for an unpatentable invention;
(c) if it has been granted to a person who is not the inventor;
(d) if a third party, acting in good faith prior to the filing date of the application for the grant of a patent or the date of any priority claimed, has been manufacturing the product or using the process for commercial purposes within the country, or has made substantial preparations for engaging in manufacture or use for such purposes;
(e) if the patent has been granted by means of some other violation of the law that has materially brought about the grant or if it has been granted on the basis of inaccurate or false data, information or particulars.
Before declaring the lapse of the patent, the National Directorate of Industrial Property shall grant a period of six months for the interested party to effect payment of the fees referred to in the foregoing paragraph.
The decision to grant a compulsory license shall specify the scope or extent thereof, and shall in particular specify the period for which it is granted, the subject matter of the license and the amount and payment conditions of royalties, without prejudice to the provisions of Article 156 of this Law.
The grant of a compulsory license for reasons of public interest shall not diminish the right of the owner of the patent to continue to work it.
(a) the prospective licensee must prove that he has tried to obtain authorization from the owner of the rights on reasonable terms and conditions, and that either his attempts have met with no response or have been responded to negatively within a period of not less than six months from the formal request in which such terms and conditions were mentioned in such a manner as to permit the owner of the patent to take a decision;
(b) the compulsory license shall not be exclusive and may not be either transferred or sublicensed otherwise than with the part of the business that serves for its industrial exploitation and with the consent of the owner of the patents; that consent shall be evidenced in writing and registered with the National Institute of Industrial Property;
(c) the compulsory license shall be granted mainly to supply the domestic market in cases where the goods concerned are not produced in or imported into the country, or the territory of a Member Country of the Andean Community or any other country with which Ecuador has a customs union or other agreement of equivalent effect;
(d) the licensee shall recognize the right of the owner of the patents to royalties for the non- exclusive working of the patent on the same business terms as would have been applicable in the case of a voluntary license. Those terms may not be less than those offered by the prospective licensee under subparagraph (a) of this Article and, in the absence of agreement between the parties and after notification of the decision of the National Directorate of Industrial Property on the grant of the license, shall be set by the said Directorate;
(e) the license shall be immediately revoked where the licensee fails to meet payments and other obligations;
(f) the compulsory license shall be revoked, either ex officio or on a reasoned request from the owner of the patent, where the circumstances that gave rise to it cease to obtain, without prejudice to the adequate protection of the legitimate interests of the licensee.
158. Licenses that do not comply with the provisions of this Section shall be devoid of effect. With respect to voluntary licenses, due regard shall be had to the provisions of Book III4 ,
Section V, of the Acts and Contracts on Industrial Property and New Plant Varieties.
Chapter III Utility Models
4 See footnote 2 (Editor's note).
thereof which makes for better or different operation, use or manufacture of the object incorporating it or confers on it any usefulness, advantage or technical effect that it did not have previously, and any other new creation susceptible of industrial application that does not have sufficient inventive content for the grant of a patent.
Chapter IV Protection Certificates
The holder of a protection certificate shall enjoy the right of priority for the filing of a patent application within the year following the date of grant of the certificate.
Provided that the request complies with the prescribed requirements, the National Directorate of Industrial Property shall grant the protection certificate on the filing date thereof.
Chapter V Industrial Designs
Any combination of lines, shapes or colors shall be considered an industrial design and any three-dimensional shape, whether or not associated with lines or colors, shall be considered an industrial model, where either serves as a pattern for the manufacture of an industrial or craft product and differs in its specific configuration from similar ones.
Those industrial designs shall not be registrable whose appearance is dictated entirely by technical or functional considerations, and which do not embody any contribution made by the designer to give them a special appearance without altering their function or purpose.
Novelty shall not exist by virtue of the mere fact of the designs showing secondary differences in relation to earlier creations, or the fact that they are intended for another purpose.
The procedure for the registration of industrial designs shall be that laid down in this Law for the grant of patents, as appropriate. The examination of novelty shall take place only where opposition is filed.
1968, as amended and updated, shall be used for the ordering and classification of industrial designs.
172. In the review procedure, the Intellectual Property Committee of the IEPI may, either ex officio or at the request of a party, invalidate the grant of registration of the industrial design in the following cases:
(a) where the subject matter of the registration is not an industrial design within the meaning of this Law;
(b) where the registration has been granted in violation of the requirements laid down in this Law.
Chapter VI
Layout-Designs (Topographies) of Semiconductor Circuits
(a) “integrated circuit” means a product incorporating a semiconducting material in either its final or an intermediate form where the elements, at least one of them being an active element, and all or some of the interconnections form an integral part of the body or surface of a piece of material, the purpose of which is to perform an electronic function;
(b) “layout-design (topography)” means the three-dimensional arrangement of the elements, expressed in any form, at least one of them being an active element, and of all or some of the interconnections, of an integrated circuit, or such a three-dimensional arrangement designed for an integrated circuit that is to be manufactured;
(c) a layout-design (topography) shall be understood to be “fixed” in an integrated circuit where its incorporation in the product is sufficiently permanent or stable for the design to be perceived or reproduced for a period of more than temporary duration.
A layout-design (topography) that consists of a combination of elements or interconnections that are commonplace shall also be protected where the combination, viewed as a whole, meets the conditions specified in the foregoing paragraph.
Layout-designs (topographies) whose design is dictated solely by the functions of the circuit to which it is applied shall not be eligible for protection.
The protection conferred by this Chapter shall not extend to ideas, processes, systems, operating methods, algorithms or concepts.
The rights of the owner in an integrated circuit shall be applicable independently of whether the circuit is incorporated in a product.
Where the layout-design has not been registered, the burden of proving ownership shall be on the person who claims it.
The term of the protection recognized in this Chapter for layout-designs (topographies) shall be 10 years, counted from the date of first commercial exploitation anywhere in the world. Nevertheless, the said protection shall not be for less than 15 years following the date of creation of the layout-design (topography).
(a) reproduce, by optical or electronic means or by any other known or yet to be known process, the layout-design (topography) or any of the parts thereof that complies with the originality requirement laid down in this Chapter;
(b) exploit by any means, including importation, distribution and sale, the protected layout- design itself or an integrated circuit incorporating the protected layout-design (topography) or an article incorporating the said integrated circuit in so far as it contains an unlawfully reproduced layout-design;
(c) any other form of exploitation of integrated circuits and layout-designs (topographies)
for commercial or profit-making purposes.
Any of the aforementioned acts shall be considered unlawful if they are not performed with the prior written consent of the owner.
(a) reproduction of the layout-design (topography) carried out by a third party for the sole purpose of research or teaching or evaluation and analysis of the concepts or techniques, the flowchart or the organization of the elements incorporated in the layout- design (topography) in the process of development of a layout-design (topography) which is itself original;
(b) incorporation by a third party of a layout-design (topography) in an integrated circuit, or any of the acts mentioned in the foregoing Article, where the third party, on the basis of evaluation or analysis of the first layout-design (topography) develops a second layout- design (topography) that meets the originality requirement provided for in this Chapter;
(c) importation or distribution of semiconductor products or integrated circuits that incorporate a layout-design (topography) where such objects are sold or otherwise lawfully brought into commercial channels by the owner of the protected layout-design or with his written consent;
(d) importation, distribution or sale of an integrated circuit that incorporates an unlawfully reproduced layout-design (topography) or in relation to any article that incorporates such an integrated circuit, where the person who performs or orders those acts did not know or did not have reasonable grounds to believe, on acquiring the integrated circuit or the article incorporating the integrated circuit, that it incorporated an unlawfully reproduced layout-design (topography). This exception shall no longer apply as from the moment at which the person referred to in this subparagraph has received from the owner or his representative a written communication on the unlawful origin of the said incorporation; in that case he may dispose of the object in which the layout-design (topography) has been incorporated, with the obligation to pay the owner a reasonable royalty, which, in the absence of agreement, shall be set by the competent court.
For the purposes of this Book, the sale, distribution or importation of a product incorporating an integrated circuit constitutes an act of sale, distribution or importation of the said integrated circuit in so far as it contains the unauthorized copy of a protected layout-design (topography).
Chapter VII Undisclosed Information
(a) the information is secret in the sense that, as a whole or in the exact configuration or arrangement of its elements, it is not generally known or readily accessible to those persons who belong to the circles that are usually concerned with the type of information involved;
(b) the information has an actual or potential commercial value attributable to its secrecy;
(c) given the circumstances, the person who legally has control over it has taken reasonable steps to keep it secret.
Undisclosed information may in particular relate to the nature, characteristics or purposes of goods, to production methods or processes or to means or methods of distributing or marketing goods or rendering services.
Also eligible for protection as undisclosed information is the technological content of manufacturing and production processes in general, and knowledge of the use and application of industrial techniques deriving from the knowledge, experience or intellectual skill kept confidential by a given person which enables him to secure or maintain a competitive or economic advantage over third parties.
For the purposes of this Chapter, the natural person or legal entity having legitimate control over the undisclosed information shall be considered the owner thereof.
(a) industrial or commercial espionage;
(b) failure to meet a contractual or legal obligation;
(c) breach of confidence;
(d) inducement to commit any of the acts mentioned in subparagraphs (a), (b)and (c);
(e) acquisition of undisclosed information through a third party who knew, or only through negligence did not know, that such acquisition constituted one of the acts mentioned in subparagraphs (a), (b), (c) and (d).
187. The protection of undisclosed information provided for in Article 173 shall last for as long as the circumstances specified therein continue to obtain.
The authority concerned shall be obliged to preserve the secrecy of such information and to take steps to ensure its protection against any unfair use.
disclose it by any means, unless otherwise agreed with the person who transferred the secret to him or authorized him to use it.
The party seeking marketing approval may specify what data or information the authorities may not disclose.
No one other than the person who submitted the data referred to in the foregoing paragraph may, without that person’s authorization, use such data in support of an application for the approval of a product for as long as the information has the characteristics mentioned in this Chapter.
The aforesaid deposit shall not however constitute proof against the owner of the undisclosed information if that information has in any way been taken from him by the person who has made the deposit, or if the information has been supplied to him by the owner under some contractual arrangement.
Chapter VIII Trademarks
Advertising slogans may also be registered as trademarks provided that they do not contain allusions to similar goods or trademarks or expressions that might prejudice such goods or trademarks.
Associations of producers, manufacturers, service providers, organizations or groups of persons that have been legally established may register collective trademarks to distinguish the goods or services of their members on the market.
(a) cannot be trademarks in terms of Article 184;
(b) consist of the usual shape of the goods or their packaging, or of shapes or characteristics dictated by the nature of the operation of the product or service concerned;
(c) consist of shapes that lend a functional or technical advantage to the product or service to which they are applied;
(d) consist solely of a sign or of information that could serve in trade to designate or describe some characteristic of the product or service concerned, including laudatory expressions relating to them;
(e) consist solely of a sign or of information that constitutes the generic or technical name of the product or service concerned, or is a common or usual designation used for it in everyday language or in the business usage of the country;
(f) consist of a color in isolation without any outline to give it a specific shape, except where it is shown to have acquired distinctiveness as a means of identifying the goods or services for which it is used;
(g) are contrary to the law, morality or public policy;
(h) are liable to deceive business circles or the general public as to the nature, origin, method of manufacture, characteristics or suitability for use of the goods or services concerned;
(i) reproduce or imitate a protected appellation of origin, constitute a national or foreign geographical indication liable to mislead regarding the goods or services to which it is applied, or which in use might mislead the public as to the origin, provenance, properties or characteristics of the goods for which the trademarks are used;
(j) reproduce or imitate the name, armorial bearings, flags and other emblems, acronyms, denominations or abbreviated denominations of any State or international organization, where they are officially recognized, without the permission of the competent authority of the State or of the international organization concerned. Nevertheless, such signs may be registered where they do not cause any confusion regarding the existence of a link between the sign in question and the State or organization concerned;
(k) reproduce or imitate signs, seals or official hallmarks indicating control or warranty, except where their registration is applied for by the competent body;
(l) reproduce coins or banknotes that are legal tender within the territory of the country or of any other country, or securities and other business documents, seals, imprints or postage or tax stamps in general;
(m) consist of the denomination of a plant variety protected either within the country or abroad, or of a denomination essentially derived therefrom, except where the application is filed by the same owner.
Where the signs are not intrinsically capable of distinguishing the goods or services concerned, the National Directorate of Industrial Property may make registrations subject to the distinctiveness that they have acquired through use for the identification of the applicant’s goods or services.
(a) that are identical, or so similar as to risk causing confusion in the mind of a consumer, to a trademark previously filed for registration or registered by a third party for the protection of the same goods or services, or goods or services regarding which its use might cause confusion or association with the said trademark, or might harm its owner by diluting the trademark’s distinctiveness or commercial value or constitute unfair exploitation of its prestige or that of its owner;
(b) that are identical or so similar to a protected trade name that they are liable to cause confusion in the minds of consumers;
(c) that are identical or so similar to an advertising slogan filed for registration or registered earlier by a third party that they are liable to cause confusion in the minds of consumers;
(d) that constitute a reproduction, imitation, translation, transliteration or transcription, either total or partial, of a sign that is well known within or outside the country, regardless of the goods or services to which it is applied, when its use would be liable to cause confusion or association with that sign, to exploit its notoriety improperly or to dilute its distinctiveness or commercial value.
A sign shall be understood to be well known where it is identified by the relevant sector of the consuming public within the country or internationally.
This provision shall not be applicable where the applicant is the lawful owner of the well-known trademark;
(e) that are identical or similar to a sign of high renown, regardless of the goods or services for which the registration is sought.
A sign shall be understood to be of high renown where it is known to the general public within the country or internationally.
This provision shall not apply where the applicant is the lawful owner of the trademark of high renown;
(f) that consist of the full name, pseudonym, signature, title, nickname, caricature, likeness or portrait of a natural person other than the applicant, or of a person who is identified by the relevant sector of the public as being a person other than him, except where proof is given of the consent of that person or of his heirs;
(g) consist of a sign that suggests infringement of copyright, except where the consent of the owner of the copyright has been obtained;
(h) consist of, include or reproduce medals, prizes, diplomas or other awards, except where filed by the persons who present them.
(a) the extent to which it is known in the relevant sector of the public to be a distinctive sign for the goods or services for which it is used;
(b) the scale and scope of the dissemination and advertising or promotion of the trademark;
(c) the age of the trademark and the constancy of its use;
(d) analysis of the production and marketing of the goods or services that lend distinction to the trademark.
The same right of priority shall be available by virtue of the use of a trademark at an officially recognized exhibition held within the country. The period of six months shall be calculated from the date on which the goods or services bearing the trademark concerned were first displayed, which shall be attested by a certificate issued by the competent authority responsible for the exhibition.
(a) proof of payment of the prescribed fee;
(b) a copy of the first application for trademark registration filed abroad where priority is claimed;
(c) any other documents that may be prescribed by the Regulations.
(a) a copy of the statutes of the association, organization or group of persons applying for registration of the collective trademark;
(b) a copy of the rules used by the applicant seeking registration of the collective trademark to exercise control over the goods or services;
(c) a mention of the conditions on which and the manner in which the collective trademark is to be used;
(d) a list of members.
Once registration of a collective trademark has been secured, the association, organization or group of persons shall inform the National Directorate of Industrial Property of any change that may occur.
204. The National Directorate of Industrial Property shall, on receipt of the application, except where the document referred to in Article 202 (a) is enclosed, certify the date and time of its filing and assign to it a serial number which must be consecutive and continuous. If the document referred to in Article 202 (a) is missing, the application shall not be accepted for processing and no filing date shall be accorded to it.
the list of goods or services within the same international class up to the time of the publication referred to in Article 207.
The National Directorate of Industrial Property may at any stage in the processing call upon the applicant to make alterations to his application. That request for alterations shall be processed in accordance with the provisions of the following Article.
On no account may the application be amended to change the sign.
If it emerges from the examination that the application does not comply with the requirements of form, the National Directorate of Industrial Property shall notify the applicant so that, within a period of 30 days following the notification, he may remedy the defects.
If the defects have not been remedied within the period specified, the application shall be rejected.
(a) they are filed outside the prescribed time;
(b) they rely exclusively on an application whose filing or validly claimed priority date is later than the application for trademark registration that is being opposed;
(c) the opposition relies on the registration of a trademark that has coexisted with that for which registration is sought where the latter application for registration was filed by the person who was its last owner during the six months following the expiry of the period of grace in order to secure renewal of his registration.
On expiry of the period referred to in this Article, the National Directorate of Industrial Property shall rule on the oppositions and on the grant or refusal of registration of the trademark, which ruling shall be set down in a duly reasoned decision. At any time prior to the issue of the ruling, the parties may negotiate an agreement which shall be binding on the National Directorate of Industrial Property. If however the parties consent to the coexistence of identical signs for the protection of the same goods or services, the National Directorate of Industrial Property may object if it considers that the general interests of consumers are adversely affected thereby.
211. On expiry of the period provided for in Article 198 without any opposition having been filed, the National Directorate of Industrial Property shall proceed to conduct the examination of registrability and to grant or refuse registration of the trademark. The corresponding decision shall be duly supported by reasons.
Renewal shall require only the filing of the relevant application and shall be granted without further processing on the same terms as the original registration.
The International Classification referred to in the foregoing paragraph shall not determine whether goods or services are similar to or different from each other.
National Directorate of Industrial Property.
The trademark shall be used as registered. The only variations allowed shall be those that entail only minor amendment or alteration of the registered sign.
(a) use in trade of a sign identical or similar to the registered trademark in relation to goods or services that are identical or similar to those for which it has been registered, where the use of the sign is liable to cause confusion or do the owner economic or commercial harm or cause the distinctiveness of the trademark to be diluted.
The risk of confusion shall be presumed in the case of an identical sign used to distinguish identical goods or services;
(b) sale, offering or stocking for sale or marketing of goods, or the offering of services, under the trademark;
(c) importation or exportation of goods under the trademark;
(d) any other act which, by its nature or purpose, could be considered comparable or susceptible of assimilation to those provided for in the foregoing subparagraphs.
The trademark owner may prohibit all the acts specified in this Article, regardless of whether they are carried out on digital communication networks or via other known or yet to be known channels of communication.
their goods or rendering of their services, or other characteristics thereof, provided also that the use is confined to identification or information purposes and is not capable of misleading the public as to the origin of the goods or services.
Registration of the trademark shall not give its owner the right to prohibit a third party from using the trademark to advertise, offer for sale or indicate the existence or availability of legitimately marked goods or services, or from using it to indicate the compatibility or suitability of spare parts or accessories usable with the goods bearing the registered trademark, provided that the use is made in good faith, is confined to the purpose of informing the public with a view to sale and is not liable to mislead it or confuse it as to the corporate origin of the goods concerned.
The following shall be considered proof of the use of a trademark:
(a) business invoices that show the regularity and volume of marketing prior to the bringing of the action for cancellation of the registration for non-use;
(b) inventories of stocks of the merchandise identified by the trademark, their existence being certified by a company of auditors that shows the regularity of production or sale prior to the date on which the cancellation proceedings for non-use of the trademark are brought;
(c) any other suitable means of proof to attest the use of the trademark.
Proof of use of the trademark shall be the responsibility of the owner of the registration. Registration may not be cancelled where the owner shows that the non-use is due to force
majeure, unforeseen circumstances or restrictions on imports or other official enactments of restrictive character that are imposed on the goods and services protected by the trademark.
On expiry of the period referred to in this Article, a duly-reasoned decision shall be issued ruling on whether or not to cancel the trademark registration.
Subject to the provisions of the foregoing paragraph, a trademark shall also be considered in use in the following cases:
(a) where it is used to distinguish goods or services intended solely for export;
(b) where it is used by a duly authorized third party, even if the authorization or license has not been registered;
(c) where genuine goods have been placed and distributed on the market under the registered trademark by persons other than the owner of the registration.
It shall not be a ground for cancellation of registration of a trademark where it is used in a manner that differs from that in which it was registered but only in matters of detail or elements that do not alter its original distinctive character.
Renunciation shall not be allowed if there are registered third-party rights, except with the express consent of the owners of the said rights.
Renunciation shall be binding on third parties only where a marginal note had been made concerning it in the original registration.
(a) where registration has been granted on the basis of false data or documents that were essential to grant;
(b) where registration has been granted in violation of Articles 194 and 195 of this Law;
(c) where registration has been granted in violation of Article 196 of this Law;
(d) where registration has been obtained in bad faith. The following in particular shall be considered instances of bad faith:
1. where a representative, distributor or user connected to the owner of a trademark registered abroad applies for and obtains registration in his name of that trademark, or another that might be confused with it, without the express consent of the owner of the foreign trademark;
2. where the application for registration has been filed or the registration obtained by a person whose customary activity is the registration of trademarks for marketing;
(e) where registration has been obtained in violation of the established procedure or where any other violation of the law has materially influenced its grant.
228. The competent court may declare the trademark registration invalid where it is included in one of the cases provided for in subparagraphs (a), (c), (d) and (e) of the foregoing Article in response to a complaint filed after the period laid down in this Law for the initiation of the review procedure has expired and before 10 years have elapsed from the date of grant of the registration of the trademark, except where the review procedure has been initiated earlier and review finally refused.
In the case provided for in subparagraph (b) of the foregoing Article, the complaint may be filed at any time after the period laid down in this Law for the initiation of the review procedure has expired and provided that review has not been finally refused. In that case the request for invalidation may be filed by any person.
The invalidation of a registration shall be notified to the National Directorate of Industrial
Property for the making of a marginal annotation in the Register.
Chapter VII Trade Names
The right to the exclusive use of a trade name shall arise from at least six months of public and continuous bonafide use of the said name in trade.
Trade names may be registered with the National Directorate of Industrial Property, but the right to exclusive use thereof shall be acquired in the manner provided for in the foregoing paragraph. Registration shall however constitute a presumption of ownership in favor of its owner.
Chapter VIII Trade Dress
Chapter IX Geographical Indications
quality, reputation or other characteristic of the product is essentially attributable to its geographical origin, including both natural and human factors.
239. The right of exclusive use of Ecuadorian geographical indications shall be recognized on the basis of the corresponding declaration issued by the National Directorate of Industrial Property. Their use by unauthorized persons shall be considered an act of unfair competition, even in cases where they are accompanied by expressions such as “género” (“kind”), “clase” (“type”), “tipo” (“make”), “estilo” (“style”), “imitación” (“imitation”) and other similar expressions that also create confusion in the mind of the consumer.
(a) do not conform to the definition contained in Article 237;
(b) are contrary to morality or public policy or liable to mislead the public as to the origin, nature, method of manufacture or characteristics or qualities of the goods concerned;
(c) are common or generic indications serving to distinguish the product concerned, being considered such by those acquainted with the subject or by the general public.
241. The declaration of protection of a geographical indication shall be issued ex officio or at the request of persons who prove that they have a legitimate interest therein, by which are meant those persons, whether natural persons or legal entities, who devote themselves directly to the extraction, production or development of the product or the goods that are to be covered by the geographical indication. The authorities of the central or sectoral administration shall likewise be considered interested parties when the geographical indications concerned relate to their own areas of concern.
246. The National Directorate of Industrial Property shall, either ex officio or at the request of a party, cancel the authorization to use a geographical indication, after the person who obtained it has been heard, if the conditions prescribed in this Chapter were not present when it was granted or if those conditions cease to be present thereafter.
manufacturers or craftsmen who have a legitimate interest, or by their authorities. Geographical indications must have been declared such in their countries of origin.
The protected geographical indications of other countries shall not be considered common or generic terms with which to distinguish any product for as long as the protection subsists.
…5
The expression economic activities shall be understood in the broad sense that encompasses the work of professionals such as attorneys, doctors and engineers and those engaged in the conduct of any profession, craft or official duty in other areas.
For the definition of fair practice, reference shall be had to the criteria of national trade; nevertheless, in the case of acts or practices engaged in the context of international operations, or those that have links to two or more countries, the criteria determining fair practice that prevail in international trade shall be observed.
Such acts may relate among other things to trademarks, whether registered or not, trade names, business identifiers, the appearance of goods or establishments, the presentation of goods or services, celebrities or well known fictional characters, processes for the manufacture of goods, advantages of goods or services for specific purposes, qualities, quantities or other characteristics of goods or services, the geographical origin of goods or services, the conditions on which goods or services are offered or supplied, advertising that imitates, shows disrespect for or denigrates the competitor or his goods or services, unprovable comparative advertising and boycotting.
Dilution of intangible assets shall be understood to mean the lessening of the distinctiveness or advertising value of a trademark, trade name or other business identifier, the appearance of a product or the presentation of goods or services, or of a celebrity or well known fictional character.
5 See footnote 2 (Editor's note).
(a) unfair commercial use of undisclosed test findings or other secret data whose production has required a considerable effort and which have been submitted to the competent authority for the purpose of obtaining marketing approval for pharmaceutical products or agricultural or industrial chemicals;
(b) the disclosure of such data, except where it is necessary to protect the public and where action is taken to ensure the protection of the data against any unfair commercial use;
(c) the unauthorized retrieval, for unfair use in trade, of data whose production has required considerable effort.
The measures referred to in the foregoing paragraph may also be sought by labor unions or professional associations that have a legitimate interest in protecting their members against acts of unfair competition.
Chapter I General Principles
The administrative protection of intellectual property rights shall be governed by the provisions of Book V of this Law.
(a) the cessation of the infringing acts;
(b) the permanent confiscation of the goods or other objects resulting from the infringement, the definitive withdrawal of the merchandise constituting the infringement from commercial channels, and also its destruction;
(c) the definitive confiscation of the apparatus and other means used to commit the infringement;
(d) the definitive confiscation of the apparatus and other means used to store copies;
(e) indemnification for damages and prejudice;
(f) reparation in any other form for the effects caused by the violation of the rights;
(g) the total value of procedural costs.
The rights laid down in international treaties in force in Ecuador may also be demanded, especially those specified in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) of the World Trade Organization.
pseudonym or any other denomination that leaves no doubt as to the identity of the natural person or legal entity concerned to appear in the usual way on or in connection with the work, performance, production or broadcast.
It shall be understood that a person has been warned of the possibility of infringement when notice thereof, with a statement of reasons, has been served on him.
The operators or persons, whether natural persons or legal entities, referred to in this provision shall be exempted from liability for whatever acts they perform and technical measures that they take with a view to avoiding the occurrence or continuation of the infringement.
293. The owner of rights in trademarks, trade names or new plant varieties who establishes that the Inspectorate of Companies or Banks [Superintendencia de Compañías o de Bancos] has approved the adoption by companies under its supervision of a denomination that includes signs identical to the said trademarks, trade names or new plant varieties may apply to the IEPI through the appropriate channels of appeal for the suspension of the use of the denomination or business style in question in order to remove all risk of confusion or improper use of the protected sign.
The IEPI shall give notice to the parties and to the Inspectorate of Companies or Banks of the relevant ruling; the company shall have a period of 90 days from notification of the ruling by the IEPI within which to adopt another denomination or business style, which period may be extended once for the same amount of time provided that there is good reason for such extension.
Where a new denomination or business style is not adopted within the period specified in the foregoing paragraph, the Inspectorate shall proceed to wind up or liquidate the company.
Chapter II Intellectual Property Litigation
294. Jurisdiction for the hearing of disputes on this subject shall belong in the first instance to the district intellectual property magistrates [Jueces Distritales de Propiedad Intelectual] and in the second instance to the district intellectual property courts [Tribunales Distritales de Propiedad Intelectual].
Cassation appeals lodged in this field shall be heard by the Special Intellectual Property Chamber of the Supreme Court of Justice [Sala Especializada en Propiedad Intelectual de la Corte Suprema de Justicia].
295. District Intellectual Property Tribunal [Juzgado Distrital de Propiedad Intelectual] No. 1 and also District Intellectual Property Court No. 1, shall have their jurisdictional headquarters in the
city of Quito, and shall exercise jurisdiction over the provinces of Pichincha, Imbabura, Carchi, Cotopaxi, Tungurahua, Chimborazo, Bolívar, Pastaza, Napo and Sucumbíos.
District Intellectual Property Tribunal No. 2 and District Intellectual Court No. 2 shall have their jurisdictional headquarters in the city of Guayaquil, and shall exercise jurisdiction over the provinces of Guaya, Los Ríos, El Oro and Galápagos.
Distinct Intellectual Property Tribunal No. 3 and District Intellectual Property Court No. 3 shall have their jurisdictional headquarters in the city of Cuenca, and shall exercise jurisdiction over the provinces of Azuay, Loja, Cañar, Morona Santiago and Zamora Chinchipe.
Distinct Intellectual Property Tribunal No. 4 and District Intellectual Property Court No. 4 shall have their jurisdictional headquarters in the city of Portoviejo, and shall exercise jurisdiction over the provinces of Manabí and Esmeraldas.
Articles 27, 28, 29 and 30 of the Code of Civil Procedure and in this Article.
The judges of the place in which the infringement has been committed shall likewise be competent to hear these actions.
In the case of transmissions via satellite, the infringement shall be understood to have been committed either in the place in which the transmission started or in the place in which the signal has mainly been made accessible to the public.
In the case of infringements committed over digital communication networks, the said infringements shall be considered committed either in the place in which the computer systems referred to in Article 292 are located or in the place in which the transmission has mainly been made accessible to the public.
Without prejudice to the expert or experts submitting their report or reports in writing, either of the parties may request of the court that the said expert or experts attend a hearing in order to speak on the questions formulated by the parties.
It shall be a cause for removal of district intellectual property judges, in addition to the causes provided for in the law, where they violate their mandate as specified in these provisions.
to settle the matter, rely on such information as may have been supplied to him by the party who asked for the evidence.
Where either of the parties fails to supply information or access codes or in any way hinders the verification of apparatus, equipment or other media in which unauthorized reproductions may be stored, it shall be presumed that they violate intellectual property rights.
Where the case relates to violation of a process patent, the burden of proof on the lawfulness of the process used for the manufacture of the product shall be on the defendant.
(a) the profits that the owner would have earned if the violation had not taken place;
(b) the profits that the infringer earned as a result of the violation;
(c) the price, remuneration or royalty that the infringer would have had to pay the owner for lawful exploitation of the infringed rights;
(d) the reasonable costs, including fees for professional advice and assistance incurred by the owner in relation to the dispute.
The fines collected under this provision shall be paid in a proportion of one-third to the IEPI
and one-third to the owner of the rights infringed, with the remaining third distributed as follows:
(a) the budget of the Judiciary;
(b) the Solidarity Fund;
(c) the promotion of science and technology through the IEPI.
305. Provisional and precautionary measures relating to intellectual property shall be processed according to Section XXVII, Title II, Book II of the Code of Civil Procedure, subject to the modifications provided for in this Section.
The judge shall determine whether the requesting party is the owner of the rights, to which end account shall be taken of the presumptions provided for in this Law. In the absence of information supplied with the request that allows ownership to be presumed, the sworn statement enclosed with the request for the purpose shall suffice.
(a) immediate cessation of the unlawful activity;
(b) suspension of the activity consisting in use, exploitation, sale, offering for sale, importation or exportation, reproduction, communication or distribution, as the case may be;
(c) any other measure that would prevent the continued violation of rights.
A confiscation order may be issued on the income earned by means of the infringing activity, property guaranteeing payment of indemnification and the goods or merchandise violating an intellectual property right, and also on the equipment, apparatus and other means used to commit the infringement and the originals that served for the reproduction or communication.
Retention may be ordered in respect of money owed for exploitation or remuneration.
A ban on leaving the country shall be ordered where the defendant has no domicile or permanent establishment in Ecuador.
(a) suspension of the infringing activity or prohibition of the infringer from resuming it, or both;
(b) provisional closure of the premises or establishment, which shall be ordered where the infringing merchandise or unlawful copies represent a substantial part of the usual business of the infringer;
(c) withdrawal of the merchandise, unlawful copies or infringing objects from the market, and their judicial deposit;
(d) disablement of materials or objects connected with the infringement, and where necessary destruction of molds, plates, printing blocks, instruments, negatives, plants or parts thereof and other material intended for the use of patented inventions, the printing of trademarks, unauthorized reproduction or communication, or anything used predominantly to facilitate the removal or disablement of any technical protection or electronic information device, the intended use thereof being mainly for acts in violation of any intellectual property rights;
(e) any other measure that proves necessary for the urgent protection of intellectual property rights, given the nature and circumstances of the infringement.
310. The measures shall be carried out in the presence of the judge, if the plaintiff so requests, who may be assisted by the necessary experts or IEPI officials and whose ruling on the proceedings shall be set down in the appropriate record and shall be used for implementation. The order issued by the judge under the foregoing Article shall mean that no further formality or additional ruling is required for whatever practical intervention may be necessary for the full implementation of the precautionary measure, including the breaking of locks or seals, without prejudice to the judge’s right at the time of the proceedings, to order any other precautionary measure that might prove necessary for the urgent protection of rights, either ex officioor at the verbal request of a party.
The judge may place seals on the property identified, itemized and recorded.
314. When the precautionary measure has been carried out, the complaint shall be notified to the defendant and the judge shall order the start of the period for the submission of evidence provided for in Article 917 of the Code of Civil Procedure.
The precautionary measures shall lapse if, within a period of 15 days of their having been carried out, the main action is not brought.
In cases where provisional measures are revoked or lapse owing to action or omission on the part of the plaintiff, or where it is subsequently established that there has been no infringement or threat of infringement of an intellectual property right, the competent court shall order the plaintiff, at the request of the defendant, to provide indemnification for damages and prejudice.
315. Judges who do not comply with the provisions of Article 73 of the Code of Civil Procedure within the 48 hours following receipt of the complaint, or without good reason refuse to take a precautionary measure, shall be liable to the owner of the rights for any harm done, without prejudice to such criminal action as may be appropriate.
318. Judges shall in addition abide by the procedures and measures laid down in international intellectual property conventions or treaties in force in Ecuador in so far as they are applicable. Judges shall be exempt from liability under Article 48 paragraph 2 of the Agreement on Trade- Related Aspects of Intellectual Property Rights (TRIPS Agreement).
Chapter III Offenses and Sanctions
prejudice caused, who in violation of intellectual property rights stocks, manufactures, uses for commercial purposes, offers for sale, sells, imports or exports
(a) a product covered by an invention or utility model patent obtained within the country;
(b) a product manufactured by means of a process covered by a patent obtained within the country;
(c) a product embodying an industrial design registered within the country;
(d) a new plant variety registered within the country, and also its reproductive or vegetative propagating material;
(e) a layout-design (topography) registered within the country, a semiconductor circuit incorporating such a layout-design (topography) or an article incorporating such a semiconductor circuit;
(f) a product or service that uses an unregistered trademark identical or similar to a well- known trademark or trademark of high renown that is registered within or outside the country;
(g) a product or service that uses an unregistered trademark identical or similar to a trademark registered within the country;
(h) a product or service that uses an unregistered trademark or geographical indication identical or similar to a geographical indication registered within the country.
In the cases provided for in subparagraphs (g) and (h), the goods or services for which the unregistered sign is used must be identical or similar to those protected by the marks or geographical indications registered within the country.
Article who, in violation of intellectual property rights,
1. disclose, acquire or use trade or industrial secrets or confidential information;
2. use in connection with goods or services or business transactions trademarks or geographical indications that are not registered within the country and constitute an imitation of well-known distinctive signs or signs of high renown that are registered within the country or abroad and might reasonably be confused with the original;
3. use, in connection with goods or services or business transactions, trademarks or geographical indications constituting imitations of distinctive signs registered within the country that might reasonably be confused with the originals to distinguish goods or services that could be substituted for the protected ones.
The sanction specified in the foregoing paragraph shall likewise be imposed on persons who, in violation of intellectual property rights, use a trade dress identical or similar to a trade dress that is well known to the public within the country.
(a) manufacture, market or stock labels, seals or packages that feature trademarks of high renown or well-known trademarks registered within the country or abroad;
(b) manufacture, market or stock labels, seals or packages that contain trademarks or appellations of origin registered within the country;
(c) separate, remove, replace or appropriate labels, seals or packages that embody lawful trademarks with a view to using them for products of different origin.
The same sanction shall be imposed on those who stock, manufacture, use for commercial purposes, offer for sale, sell, import or export articles that contain false information on the nature, origin, method of manufacture, quality, characteristics or suitability for use of the goods or services concerned, or contain false information concerning awards or other distinctions.
The sanction specified in the foregoing paragraph shall likewise be imposed on those who fill containers identified by another’s trademark with spurious goods.
(a) alter or mutilate a work, including by the removal or alteration of electronic rights management information;
(b) register, publish, distribute, communicate or reproduce, wholly or in part, another’s work as being their own;
(c) reproduce a work;
(d) communicate works, videograms or phonograms to the public, either wholly or in part;
(e) bring into the country, stock, offer for sale, sell or rent, or in any other way bring into circulation or make available to third parties, unlawful reproductions of works;
(f) reproduce a phonogram or videogram and generally any protected work, and also the performances of performers, either wholly or in part and with or without imitation of the outward features of the original, or bring into the country, stock, distribute, offer for sale, sell, rent or in any other way bring such unlawful reproductions into circulation or make them available to third parties;
(g) bring into the country, stock, offer for sale, sell or rent, or in any other way bring into circulation or make available to third parties, reproductions of works, phonograms or videograms in which rights management information has been altered or removed.
(a) reproduce a number of copies of a work greater than that authorized by the owner;
(b) bring into the country, stock, offer for sale, sell or rent, or in any other way bring into circulation or make available to third parties, reproductions of works in numbers exceeding those authorized by the owner;
(c) retransmit by any means the broadcasts of broadcasting organizations;
(d) bring into the country, store, offer for sale, sell or rent, or in any other way bring into circulation or make available to third parties, apparatus or other devices intended for deciphering or decoding coded signals or in any other way circumventing or disabling technological protection measures applied by the owner of the rights.
Criminal Code:
(a) the fact of the infringer having been warned of the violation of rights;
(b) the fact of the infringing goods being a potential health hazard;
(c) the fact of the infringements being perpetrated on unpublished works.
328. The infringements provided for in this Chapter shall be punishable and investigable ex officio.
333. The IEPI, acting through the National Directorate, shall, ex officioor at the request of a party, exercise inspection, supervisory and punitive functions to prevent and repress violations of intellectual property rights.
(a) inspection;
(b) request for information;
(c) punishment of violations of intellectual property rights.
Applications submitted for precautionary measures shall be held in reserve until after they have been implemented and, even afterwards, the authorities shall take the necessary measures to preserve the confidentiality of undisclosed information that has had to be provided in the course of the proceedings.
336. If in the course of the proceedings it is found, or even presumed (prima facie), that an intellectual property right has been violated or that there are circumstances that unequivocally point to the imminent possibility of such violation, a detailed inventory shall be duly drawn up of the material, of whatever kind that is connected with the violation. A record shall be taken of the material inspected by such means as allow its state to be best appreciated.
This measure may include the immediate removal of labels that clearly violate intellectual property rights, without prejudice to the seizure and deposit of the merchandise or other objects that violate patent, trademark or other intellectual property rights.
The IEPI, acting through the regional directorates competent for the subject matter concerned, may take any precautionary measure for the urgent protection of the rights referred to in this Law if the application for the measure is accompanied by the evidence referred to in Article 306. Such measures shall be provisional in character and subject to revocation or confirmation as provided in Article 339.
338. With the exception of the provisional precautionary measures adopted under Article 336, the party against whom the proceedings are directed shall be heard before any decision is taken. If considered appropriate, a hearing may be convened at which the interested parties may express their views.
If there is a presumption of an offense having been committed, a copy of the administrative proceedings shall be sent to the competent criminal court and to the Public Prosecutor.
If they do not prevent the entry or export of such goods at the request of the interested party, they shall be considered accomplices in the offense committed, without prejudice to the appropriate administrative sanction.
When, either ex officioor at the request of a party, they prevent the entry or export of any product violating intellectual property rights, they shall make it known in a detailed report to the President of the IEPI, who, within five days shall confirm or revoke the measure taken. On confirmation of the measure, the goods shall be placed at the disposal of a criminal court.
Where the Administrator of Customs or any other competent official has refused to take the measure requested or has not made a statement within a period of three days, the party concerned may, within the following three days, directly call upon the President of the IEPI to order it.
Any party ordering the measure may demand security in accordance with the following
Article.
The ruling shall be issued within a period of three days following the request. If it is considered necessary or appropriate, it may be provided that the requesting party shall provide sufficient security. If no security is provided within a period of five days after it has been requested, the measure shall be void.
At the request of the party affected by the suspension, the National Director of the IEPI shall, depending on the circumstances, order the holding of a hearing to examine the merchandise and where appropriate to revoke the measure. If the measure is not revoked, he shall order the referral of the entire proceedings to a criminal court.
Regime of the Executive shall be applied to administrative proceedings.
Chapter I
Aims of the Institute
(a) to sponsor the protection and defense of the intellectual property rights recognized in national legislation and international treaties and conventions;
(b) to promote and further intellectual creation, both in its literary, artistic or scientific form and in its industrial applications, and also disseminating technical know-how within cultural and production sectors;
(c) preventing acts and situations that might adversely affect intellectual property and free competition, and also ensuring that the principles laid down in this Law are complied with and respected.
Chapter II Organization and Functions
— the President;
— the Management Board;
— the Intellectual Property Committee;
— the National Directorate of Industrial Property;
— the National Directorate of Copyright and Related Rights;
— the National Directorate of New Plant Varieties.
In the event of resignation, permanent absence or any other impediment that makes him incapable of continuing to carry out his duties, the President of the Republic shall immediately proceed to appoint his replacement, whose term of office shall likewise be six years. In the event of temporary incapacity or absence, the President shall be replaced by the National Director specified by the Management Board.
(a) to be the legal representative of the IEPI;
(b) to ensure that the laws and international conventions on intellectual property are compiled with and implemented;
(c) to draw up the annual budget of the IEPI and submit it to the Management Board for approval;
(d) to appoint and remove the National Directors, Secretary General and other IEPI staff;
(e) to propose outlines and strategies for the international negotiations that the National Government conducts in the field of intellectual property, and also to form the groups of negotiators for the purpose in consultation and agreement with the Ministry for Foreign Affairs;
(f) to order border measures as provided in this Law;
(g) to deal with enquiries regarding the application of intellectual property provisions. The replies dealing with the enquiries shall be binding on the IEPI in each specific case
submitted. The enquiries may not relate to matters that, on the date on which they are made, are pending before an IEPI organ;
(h) any others that may be specified in this Law and the Regulations.
(a) setting and approving fees;
(b) approving the budget of the Institute;
(c) pronouncing on draft amendments to this Law, to the Regulations and to international treaties on intellectual property;
(d) proposing draft amendments to the Law or Regulations to the President of the Republic;
(e) appointing and removing members of the Intellectual Property Committee in accordance with this Law and the Regulations;
(f) enacting such provisions as may be necessary for the full implementation of this Law;
(g) any others that may be specified in the Law and Regulations.
(a) the President of the Ecuadorian Institute of Intellectual Property, who shall preside;
(b) the Minister of Foreign Trade, Industrialization and Fisheries, or his delegate;
(c) the Minister of External Relations or his delegate;
(d) the Minister of Education and Culture or his delegate;
(e) a representative of the Board of Chambers and Associations of Production, or his alternate;
(f) one representative each for the collective management societies and the labor organizations concerned with copyright or related rights, or his alternate;
(g) a representative designated by the Council of Universities and Polytechnical Schools
(CONUEP), or his alternate.
Resolutions of the Management Board shall be adopted by a favorable vote of at least five of its members.
Law and other legal provisions on intellectual property within their area of competence.
— request for reinstatement, before the official who pronounced the ruling;
— appeal, to the Intellectual Property Committee;
— appeal for review, to the Intellectual Property Committee.
The lodging of these appeals is not essential for the administrative route to be exhausted, and the actions provided for in the Law on Contentious Administrative Jurisdiction [Ley de la Jurisdicción Contencioso Administrativa] may therefore be brought directly against final administrative acts or those preventing further prosecution that are pronounced by National Directors.
Appeals shall be granted with staying and returnable effect within the administrative jurisdiction.
The District Courts of Administrative Litigation may, ex officioor at the request of a party, suspend the execution of the measure appealed against where the said execution might cause prejudices that are impossible or difficult to remedy.
(a) organization and administration of the National Register of Copyright and Related
Rights;
(b) administration of the administrative processes provided for in this Law in matters concerning copyright and related rights;
(c) approval of the statutes of societies for the collective management of copyright and related rights, issue or suspension of their operating licenses, and the exercise of supervisory, inspection and control functions in relation to such societies, with intervention, where necessary;
(d) exercise of such other responsibilities as may be provided for in this Law and the
Regulations in the field of copyright and related rights.
(a) administration of the processes of grant, registration or deposit, as the case may be, of patents, utility models, industrial designs, trademarks, slogans, trade names, trade dress, geographical indications, layout-designs of semiconductor circuits (topographies) and other forms of industrial property that are provided for in the corresponding legislation;
(b) ruling on the grant or refusal of registration;
(c) processing of and ruling on such oppositions as may be filed;
(d) administration of such other administrative processes as may be provided for in this
Law in the field of industrial property;
(e) exercise of such other responsibilities as may be provided for in this Law and
Regulations in the field of industrial property.
There shall be a single act of industrial property registration that confers rights of national scope. Consequently, the National Director of Industrial Property shall be the sole authority competent to rule on the grant or refusal of industrial property registration at the national level.
(a) administration of the processes of filing and the recognition of rights in new plant varieties;
(b) ruling on the grant or refusal of registration;
(c) processing of and ruling on such oppositions as may be filed;
(d) conduct of such other administrative processes as may be provided for in this Law in the field of new plant varieties;
(e) organization and operation of a national center for the deposit of new plant varieties, or delegation of that activity to private enterprise;
(f) exercise of such other responsibilities as may be provided for in this Law and the
Regulations in matters concerning new plant varieties.
Also, for the purpose of ensuring the exercise of the IEPI’s administrative supervision, the Management Board may create regional subdirectorates and specify the limits of their administrative jurisdiction.
The National Directors may, depending on their areas of competence, order border measures according to the provisions of Article 351 of this Law.
The members of these Committees shall have a term of office of six years and shall meet the same requirements as for being a Minister of the High Court.
The Management Board shall likewise designate the corresponding substitute members who shall replace the main members in the event of temporary or permanent absence.
Committees shall have the following responsibilities:
(a) dealing with enquiries made by National Directors concerning oppositions filed against a given application for the grant or registration of intellectual property rights;
(b) dealing with request for review and appeals;
(c) dealing with requests for the cancellation of the grant or registration of intellectual property rights, without prejudice to the provisions of Article 277;
(d) such other responsibilities as may be specified in this Law.
Decisions of the Intellectual Property, Industrial Property and Plant Varieties and Copyright Committees shall be taken by a majority vote, with abstentions, if any, being compulsorily set down in the record.
(a) the property that it acquires on whatever ground;
(b) the proceeds from the collection of the fees specified in this Law;
(c) the proceeds from fines, as provided in this Law;
(d) the proceeds from the sale of the Intellectual Property Gazette or such other publications as may be issued;
(e) any others provided for in the Law.
(a) the filing of applications for the recording, registration or grant of rights;
(b) the filing of requests for renewal or amendment of registrations;
(c) the registration of contracts;
(d) the certification of the grant or registration of rights;
(e) the grant of certified copies of any document or administrative instrument;
(f) the issue of official search certificates requested of the IEPI;
(g) examinations prior to the grant of invention or utility model patents and the registration of new plant varieties;
(h) expert studies carried out by the IEPI;
(i) proceedings engaged in for the exercise of administrative protection;
(j) the filing of oppositions;
(k) the bringing of administrative appeals;
(l) requests for cancellation;
(m) the supply of information on magnetic media;
(n) the upkeep of registers;
(o) the maintenance of live samples;
(p) the use of technological information.
In the application and interpretation of provisions on intellectual property, preference shall be given to those that confer greater protection. Consequently, no provision of national legislation or international treaties may be invoked or interpreted in such a way as to discredit, limit, prejudice, lessen or otherwise adversely affect the level of protection accorded to the owners of intellectual property rights.
374. Any dispute on intellectual property shall be submitted to arbitration or mediation in conformity with the Law on Arbitration and Mediation [Ley de Arbitraje y Mediación] published in Official Register [Registro Oficial] No. 145 of September 4, 1997.
For the above purposes the IEPI shall be authorized to sign the relevant arbitration settlement without having to consult the Public Prosecutor of the State.
375. District intellectual property judges shall be appointed in accordance with Article 3 of the Law Organizing the Judiciary [Ley Orgánica de la Función Judicial] and shall have jurisdiction over the subject matter provided for in this Law.
377. A sui generis system of collective intellectual rights of ethnic groups and local communities shall be introduced.
Its protection, development mechanisms and application shall be subject to a special law enacted for the purpose.
1. Law on Copyright [Ley de Derechos de Autor], published in Official Register No. 149 of August 14, 1976;
(a) Supreme Decree No. 2821 [Decreto Supremo No. 2821], published in Official Register No. 735 of December 20, 1978, and its amendment by Law No. 161, published in Official Register No. 984 of July 22, 1992;
(b) Regulations under the Law on Copyright [Reglamento a la Ley de Derechos de Autor], published in Official Register No. 495 of December 30, 1977, and all other executive decrees of ministerial agreements concerned with the subject matter that in any way conflict or are incompatible with the provisions of this Law;
2. Law on Trademarks [Ley de Marcas de Fábrica], published in Official Register No.
194 of October 18, 1976;
3. Law on Patents for the Exclusive Exploitation of Inventions [Ley de Patentes de
Exclusiva Explotación de Inventos], published in Official Register No. 195 of October
19, 1976;
4. Article 5 of Supreme Decree No. 2241 [Decreto Supremo No. 2241] of October 6,
1964, published in Official Register No. 360 of October 26, 1964.
Second. Until such time as the Management Board of the IEPI issues the corresponding decision, the fees for services governed by Ministerial Agreement No. 0106 [Acuerdo Ministerial No. 0106] of April 18, 1997, published in Official Register No. 48 of April 21, 1997, shall apply. Those fees shall be collected direct by the IEPI as from the date of entry into force of this Law and shall be set aside for its operation.
Revenue generated by application of the Ministerial Agreement referred to in the foregoing paragraph or by the charging of the fees set by the Management Board of the IEPI through publication in the Intellectual Property Gazette shall be distributed in a proportion of 60 per cent to the IEPI and 40 per cent to the MICIP for the purposes of Executive Decree No. 386 [Decreto Ejecutivo 386] of June 10, 1997.
Pending applications shall be settled in accordance with this Law.
Applications pending before the National Directorate of Industrial Property shall be settled in accordance with this Law, without prejudice to the provisions of Article 372.
administration societies that have received operating licenses shall be entitled to set tariffs. Until that time the tariffs authorized by the Ministry of Education and Culture shall prevail.
Sixth. The staff currently carrying out their duties under the Law on the Civil Service and Administrative Careers [Ley de Servicio Civil y Carrera Administrativa] at the National Directorate of Industrial Property of the Ministry of Foreign Trade, Industrialization and Fisheries, at the National Copyright Registry of the Ministry of Public Education, and those working on new plant varieties at the National Livestock Farming Directorate of the Ministry of Agriculture and Animal Husbandry shall have their posts transferred, including all acquired rights and obligations, to the IEPI.
With respect to staff working under contracts for the rendering of services, reference shall be had to the clauses of the said contracts.
Tenth. The Supreme Court of Justice, acting under item 17 of Article 12 of the Law Organizing the Judiciary, shall organize the district intellectual property tribunals and courts, which shall assume all jurisdiction conferred on them by this Law. Until such time as the district intellectual property tribunals and courts have been created, the District Courts of Administrative Litigation shall hear intellectual property cases relating in accordance with the provisions of this Law and the competencies provided for in it, with the exception of precautionary measures, which shall be heard by civil judges.
Until such time as the single collecting entity starts to operate, SAYCE shall continue to collect the royalties concerned.
The single collecting entity shall be constituted within the 60 days following the formation of the Management Board of the IEPI.
Legalization of the corporate activity mentioned in the foregoing paragraph shall in no way preclude respect for and collection and payment of copyright as from the entry into force of this Law.
Fifteenth. The appointments provided for in subparagraphs (e) and (f) of Article 353 shall be made by each of the electoral colleges within the 15 days following the publication of this Law. The Management Board shall be formed within the 30 days following the entry into force of this Law.
6 Provision concerning plant varieties, not reproduced here (Editor's note).
6 Provision concerning plant varieties, not reproduced here (Editor's note).
$$$ 3 See footnote 1 (Editor’s note).