The National Intellectual Property Rights Service (SENADI) has nullified the registration of a trademark requested in bad faith

Good faith, as a fundamental principle of the legal system, governs all areas of law, including trademark law. Under this precept, the actions of individuals are presumed to be carried out with the conviction of not harming third parties and within the framework of the law.

The registration of the trademark SAVOY TORONTO in class 30 (edible decorations for pastry and bakery products, cocoa-based beverages, chocolate-based beverages, chocolate bonbons, peanut (confectionery products based on), peanuts (confectionery products based on), cocoa, cocoa (beverages based on), cocoa (products based on), chocolate, chocolate (beverages based on), sweets, milk (cocoa with), milk (chocolate with) [drink]), was granted in 2021 under the presumption of being a good faith application, in favor of a natural person in Ecuador engaged in the marketing of food products.

The trademark was registered having fulfilled all necessary steps until the issuance of the registration certificate. However, it was not analyzed in a timely manner by the intellectual property authority, as the SAVOY TORONTO brand is one of the emblematic brands of Societé des Produits Nestlé in some countries of the region. At the time the trademark was requested, Nestlé did not have its trademark registration in Ecuador and therefore did not oppose it.

In 2022, Nestlé filed a nullity action against the SAVOY TORONTO trademark, claiming to be the legitimate creator and owner of the trademark rights, so the registration obtained by the applicant in Ecuador was made to perpetrate an act of bad faith and unfair competition, as the applicant was fully aware that it was a third party’s trademark and sought to take advantage of its fame and level of recognition among consumers.

In the nullity action, Nestlé demonstrated with convincing evidence that the request was made in bad faith, as it was practically impossible for the coincidence in the name of the trademark and the confronted products to occur as a mere coincidence, especially considering: (i) the high level of recognition of Nestlé’s brands; and (ii) that the applicant marketed products under the conflicting brands before applying for their registration in Ecuador.

Based on these grounds, by resolution No. OCDI-2024-202 of March 26, 2024, the National Intellectual Property Rights Service established that “It seems highly improbable that two different persons would have devised a distinctive sign with exactly the same terms to protect the same products, and whose registration in the Andean territory dates back to the year 2005.” and nullified the registration of the SAVOY TORONTO trademark. This resolution constitutes progress in the comprehensive protection of intellectual property rights, as the applicant’s intention in the trademark registration request was considered, not only the objective elements. The competent authority has made a correct assessment of the specific circumstances of this particular case.

 

Katherine González
Senior Associate at CorralRosales
katherine@corralrosales.com

Penalties for failure to deliver and transmit sales receipts

Resolution NAC-DGERCGC24-00000022 issued by the Internal Revenue Service (SRI) on June 6, 2024, and published in the Official Gazette 575 on June 10, 2024, regulates the penalties applicable for failure to deliver and transmit sales receipts.

It is the taxpayer’s obligation to issue sales receipts and transmit them at the time of issuance or within a maximum period of 72 hours. Non-compliance with these obligations is subject to the following penalties:

Characteristics of the taxpayer (as of the date of the offense) Failure to deliver sales receipts (RBU = US$460 for 2024) Failure to transmit electronic sales receipts to the SRI (RBU US$460 for 2024) Large taxpayer and large estates 20 RBU (US$9,200) 30 RBU (US$13,800) Special taxpayer 10 RBU (US$4,600) 15 RBU (US$6,900) Entities other than non-profits, indivisible estates, and individuals required to keep accounting 7 RBU (US$3,220) 10 RBU (US$4,600) Non-profit entities 4 RBU (US$1,840) 5 RBU (US$2,300) Indivisible estates and individuals not required to keep accounting 4 RBU (US$1,840) 5 RBU (US$2,300) Taxpayers considered small businesses subject to RIMPE regime 1 RBU (US$460) 1 RBU (US$460) Non-registered taxpayers 1 RBU (US$460) 1 RBU (US$460)

A sales receipt is considered not delivered when:

  1. The taxpayer delivers a physical receipt with an expired authorization at the time of issuance.
  2. The taxpayer delivers an electronic receipt without being authorized for issuing it.
  3. Receipts belonging to another taxpayer are delivered.
  4. Unauthorized receipts are delivered.

The transmission of electronic receipts is considered verified when:

  1. The transmission to the SRI is made within the 72-hour period.
  2. The receipts have met all the validations established for successful transmission and reception in the SRI systems.
  3. The sales receipts include the information and values of the transaction carried out.

 

Andrea-Moya-abogados-ecuador

Andre Moya, partner at CorralRosales
amoya@corralrosales.com
+593 2 2544144

© CORRALROSALES 2024
DISCLAIMER: The previous text has been prepared for informational purposes. CorralRosales is not responsible for any loss or damage caused as a result of having acted or stopped acting based on the information contained in this document. Any additional determined situation requires the specific opinion and concept of the firm.

 

CORRALROSALES

The resolution adopted in Ordinary Session No. 062 – 2024 of the Judiciary Council on May 30, 2024, does not modify the expiration of terms

The Judiciary Council, in the resolution adopted in Ordinary Session No. 062 – 2024 on May 30, 2024, extended the hours of service for the submission of requests and documents through the Electronic Judicial Management Office, to seven days a week, 24 hours a day.

While the resolution modified the hours of operation of the Electronic Judicial Management Office, it does not change the moment when judicial terms expire, as explained below: Article 77 of the General Organic Code of Processes provides:

Art. 77.-Beginning and expiration of the term. The term begins to run in a common manner, with respect to all parties, from the working day following the last summons or notification. Its expiration occurs at the last working moment of the workday.

That is, terms expire at the last working moment of the workday, which is consistent with Article 78 of the same legal body, which states that working hours are those established by the Judiciary Council.

According to Article 100 of the Organic Code of the Judicial Function, it is the obligation of all judicial function servers to fulfill the forty-hour workweek in eight-hour daily shifts. Furthermore, the workday established by the Judiciary Council is from 08:00 to 17:00 from Monday to Friday, which is consistent with Article 78 of the General Organic Code of Processes.

In conclusion, the extension of the hours of service of the Electronic Judicial Management Office optimizes judicial management in the submission of documents and requests, but does not modify the expiration of terms, which will continue to be until 17:00 on the last day.

Arguing that the expiration of terms occurs at 24:00 on the last day lacks legal and factual support, as substantiated.

 

Mateo Zavala
Senior associate at  CorralRosales
mzavala@corralrosales.com