Category Archives: BlogENG

CorralRosales > BlogENG

Considerations on the Regulatory Omission of the Exchange of Medical Devices in Public Procurement

Posted on

The Exchange of Medicines is a Mechanism Provided for in Ecuadorian Regulations That Authorizes Institutions Within the National Health System to Require Their Suppliers to Replace Medicines That Are Close to Expiring With Others of the Same Technical Specifications but With a Longer Shelf Life (“Exchange”).

This mechanism is regulated exclusively for products defined as: (i) general medicines, (ii) biological medicines, and (iii) medicine kits that include medical devices (hereinafter collectively referred to as “Medicines”). However, it is not regulated for medical devices, which are items or apparatuses designed to treat diseases or support physiological functions in the human body, without acting through pharmacological means.

There are no express or implied rules that require the exchange of medical devices, which creates uncertainty regarding the applicability of the exchange mechanism to these products when they are close to expiration. Additionally, if such a situation arises, there is no clear guidance on how to carry out the exchange.

Article 175 of the Organic Health Law and Ministerial Agreement No. 00015 – 2019 require suppliers to exchange Medicines, even if the procurement process documentation does not expressly include such an obligation. However, neither that regulation nor any other legal framework governs the exchange of medical devices. This regulatory gap generates doubts among suppliers, who are, in principle, not obligated to exchange such products.

In practice, contracting entities include this requirement during various stages of the public procurement process. This scenario can become particularly burdensome when the obligation does not specify limits in terms of volume, frequency, or cause. Due to the vague wording of the respective clauses, suppliers may even be considered non-compliant if they are unable to fulfill them.

To mitigate these risks, suppliers should ensure that any contractual exchange provision is aligned with Ministerial Agreement No. 00015 – 2019, or includes some of its limitations related to quantity, periodicity, or causality, as these are reasonable for the contractor and allow for the anticipation of potential financial impacts.

In addition to the points mentioned above, and to strengthen risk prevention during the pre-contractual stage, it is advisable for suppliers to take the following measures:

a) Verify whether the exchange obligation applies exclusively to medicines and does not extend to medical devices;


b) Ask questions during the inquiry and clarification phase to define the scope of the exchange obligation clearly; and


c) Analyze the historical consumption of the contracting entity through its needs assessment report, in order to anticipate the turnover of the requested product, as low turnover combined with high supply volumes could result in multiple exchange requests.

If such measures are not adopted, experience shows that suppliers may face exchange requests for up to 100% of the medical devices sold.

Gabriela Vázquez
Associate at CorralRosales
gvazquez@corralrosales.com 

Covid-19 pandemic does not constitute force majeure event justifying non-use in food sector

Posted on

  • Grupo Bimbo argued that the pandemic constituted a force majeure event that severely disrupted the commercialisation of goods under the DONETTES mark
  • The IP Office disagreed, stating that certain products, such as Class 30 goods, were consistently treated as essential items during the pandemic
  • The DONETTES mark encompassed a broad array of goods, thus offering multiple potential avenues through which to demonstrate continued commercial use

In a landmark decision with significant implications for trademark owners (Resolution No OCDI-2025-388, Proceedings OCDI-2021-547-AC), the Ecuadorian IP Office has upheld a non-use cancellation action against the trademark DONETTES, owned by Grupo Bimbo SAB de CV, emphasising the stringent evidentiary standards required to demonstrate trademark use, even under extraordinary circumstances such as a global pandemic.

Background

The applicable legal framework, Andean Community Decision 486 Establishing the Common Industrial Property Regime, precisely defines the term ‘use’. It states that a trademark is considered used when the associated goods or services are effectively placed on the market or made available in a manner and quantity consistent with standard commercial practices, considering their inherent nature.

In its defence, Grupo Bimbo contended that the onset of the covid-19 pandemic in 2020 – a period falling squarely within the relevant timeframe – constituted a force majeure event that severely disrupted the commercialisation of the goods protected under the DONETTES mark. Grupo Bimbo further requested that the IP Office grant a four-month extension to the relevant period, citing the state of emergency declared in Ecuador. During this period, constitutional guarantees, including freedom of movement andassembly, were temporarily suspended, and numerous public institutions, such as the IP Office itself, suspended deadlines forjudicial and administrative matters.

Decision

The IP Office meticulously assessed these arguments. While acknowledging that the state of emergency imposed restrictions oncertain non-essential activities, the IP Office underscored that essential sectors, such as food production, distribution and sales,were explicitly exempt from many of these limitations. Further, it noted that commercial channels, such as home delivery andtelecommunications services, remained fully operational and continued to facilitate commerce throughout the crisis.

In evaluating Grupo Bimbo’s claims, the IP Office paid particular attention to the nature and scope of the goods covered by theDONETTES mark. It highlighted that some goods, such as bakery and pastry goods (Class 30), were consistently treated asessential items during the pandemic. Moreover, the DONETTES mark encompassed a broad array of goods, thereby offeringmultiple potential avenues through which Grupo Bimbo could have demonstrated continued commercial use.

Ultimately, the IP Office concluded that the pandemic, while undeniably disruptive, did not prevent Grupo Bimbo from putting themark to genuine use across the various protected goods. Consequently, the IP Office held that Grupo Bimbo’s arguments, includingthose related to force majeure, were inadequate to justify non-use.

Comment

This decision serves as a strong precedent for the use of trademarks. It strongly reinforces the principle that trademark rights arefundamentally conditioned on their actual and effective use in commerce. Further, it clarifies that defences based on force majeure or similar extraordinary circumstances will be construed narrowly, particularly when alternative commercial channels or exemptedproduct categories exist, or where the exceptional circumstances did not unequivocally impact the protected goods. In times ofcrisis, trademark owners are urged to proactively preserve clear, contemporaneous evidence of use across all possible channels tosafeguard their marks from cancellation due to non-use.

Andrea Miño
Associated at CorralRosales
andrea@corralrosales.com 

AI and Border Measures: Why Physical Inspections Remain Indispensable

Posted on

Artificial intelligence is reshaping customs‑compliance workflows—from automated tariff‑code assignment to predictive risk scoring. It is tempting to assume the same technology can pinpoint intellectual‑property (IP) border measures. In practice, this expectation collides with legal realities and the tactics of infringers.

 

1 .  Manifest data rarely reveals the infringement

Infringers almost never list the goods for what they truly are. A bill of lading may list “accessories” or “stationery” while the container is packed with counterfeit footwear or infringing media. HS codes are misclassified, quantities are split across multiple B/Ls, and—most critically—there is no legal duty to declare a trademark or reference copyrights. When the paperwork is silent, an AI model has no reliable signal to flag.

2 .  No reliable data, no training data

AI models need labeled inputs: images, brands, and product identifiers. Import declarations often lack IP-specific information, and many high-risk consignments arrive in plain boxes without origin marks. Without explicit product or IP identifiers, algorithms cannot match against databases or watch lists.

3 .  Physical evidence rules

Only an on-site inspection uncovers the decisive cues:

  • Logos or products concealed inside inner packaging
  • Misspelled labels, low‑resolution printing, or off-color inks
  • Quantity or weight discrepancies that contradict declared values

X-ray scanners, detection dogs, and handheld spectrometers are valuable adjuncts, but they still depend on an officer physically opening the shipment.

 

Takeaway for rights holders

Until declarations become fully transparent—a remote prospect—physical inspection, backed by well-trained customs officers, remains the last and best line of defense against IP infringement at the border. Seizures will continue to rely on human expertise.

 

Eduardo Ríos
Partner at CorralRosales
eduardo@corralrosales.com

Miguel Maigualema
Associate at CorralRosales
miguel@corralrosales.com

Airport Incentives in Ecuador: A Strategic Opportunity for New International Routes

Posted on

Airport Incentives in Ecuador: A Strategic Opportunity for New International Routes

Ecuador has developed an incentive scheme aimed at attracting new airlines and promoting international connectivity from both publicly and privately managed airports. In a context where cost reduction and efficient operational expansion are key to airline growth, these incentives serve as a valuable tool.

What types of incentives are offered?

The incentive plan implemented by the General Directorate of Civil Aviation (DGAC) applies to new international routes operating to and from non-concessioned airports and offers significant benefits:

  1. 40% Discount on Fuel Prices
    Under Executive Decree No. 204, a 40% discount is granted on the terminal sale price of aviation fuel for routes operating from airports managed by the DGAC or delegated to municipal governments, provided they have not been concessioned.
  2. Reduction in Air Travel Fees
    Through regulations published in the Official Register, two key fees for international passenger traffic have been reduced:
  • EcoDelta: from USD 50 to USD 5
  • Ecuador Potencia Turística: from USD 10 to USD 1
    These reductions apply to new international airlines or to new routes operated by already authorized carriers.
  1. Exemption from the Currency Outflow Tax (ISD)
    Executive Decree No. 182 establishes a 0% ISD rate for foreign airlines officially designated to operate international passenger or cargo services in Ecuador. This measure enhances financial efficiency and the profitability of international operations.

It is worth noting that some private concessionaires have implemented similar incentives to increase operations.

 

Requirements to Access the Benefits

To be eligible, airlines must meet the following conditions:

  • Hold a Regular Operating Permit and an Air Operator Certificate (AOC) issued by the DGAC.
  • Operate a route that includes an airport managed by the DGAC or a municipal authority, without concession to private operators.
  • Commit to maintaining operations for the minimum period required by the incentive plan.

 

Strategic Considerations

These incentives offer airlines the opportunity to:

  • Explore new markets with reduced financial risk.
  • Lower key operating costs.
  • Improve their competitive position compared to other carriers.
  • Strengthen their regional route network under favorable conditions.

 

Specialized Legal Advice to Maximize These Benefits

At CorralRosales, we have a specialized aviation law practice that advises both passenger and cargo airlines on all legal aspects of their operations in Ecuador. Our team has extensive experience in:

  • Managing permits and regulatory processes before the DGAC.
  • Implementing new routes and conducting operational feasibility analyses.
  • Structuring and negotiating aviation and commercial contracts.
  • Leasing, purchasing, and financing aircraft.

We support our clients from initial planning through to operational execution, ensuring regulatory compliance and maximizing the available benefits.

For more information on how your airline can access these incentives, contact us.

 

Verónica Olivo
Associate at CorralRosales
volivo@corralrosales.com

FREE COMPETITION OR REGULATORY INTERVENTION? LIMITS TO STATE INTERVENTION ACCORDING TO THE PRELIMINARY RULING 13-IP-2023 OF THE TJCA.

Posted on

On June 5, 2025, the Court of Justice of the Andean Community (“Court” or “TJCA”) issued a preliminary ruling that reconfigures the delicate balance between state regulation and free competition within sub-regional air transport[1]. The consultation was formulated by the Colombian Council of State, in the context of a dispute over the legality of Resolution 890 of 2010, issued by the Colombian Civil Aeronautics (“Aerocivil”). This regulation obliges airlines to publish their fares also in travel agencies, at the same price as in their direct sales channels.

 

This ruling redefines the scope of action of member states in three key dimensions:

 

  • States’ remedial powers under Article 94 of the Cartagena Agreement.
  • Tariff regulation in the air transport sector under Decision 582[2].
  • The regulatory limits derived from the obligation not to distort free competition under Article 36 of Decision 608[3].

 

  1. Resolution 890/2010 and its controversy

 

On February 23, 2010, the Aerocivil issued Resolution 890/2010 with the intention of guaranteeing fare transparency and avoiding discriminatory practices between sales channels. However, this measure was challenged in 2021 by Avianca and 18 other airlines on the grounds that:

 

  • It implied an unjustified intervention in contractual freedom.
  • It limited competition by preventing differentiated tariff practices by channel.
  • Violated Article 94 of the Cartagena Agreement, which imposes restrictions on corrective measures that may affect free regional competition without the authorization of the General Secretariat of the Andean Community.

 

Aerocivil responded by defending its regulatory competence in a public service such as air transportation, arguing that the resolution pursued legitimate public policy goals such as transparency and consumer protection.

 

  1. Corrective Measures and State Power: Legitimate Intervention or Prohibited Distortion?

 

One of the main questions resolved by the TJCA was whether Resolution 890/2010 could qualify as a “corrective measure” under the terms of Article 94 of the Cartagena Agreement, which prohibits member countries from adopting such measures without prior authorization from the General Secretariat of the Andean Community.

The Court held that the concept of “remedy” must be read in a systematic way with Decisions 283[4], 284[5], 285[6] and 457[7], which define its scope with respect to practices such as dumping, subsidies and other distortions to subregional competition. In the TJCA’s opinion, Resolution 890 does not fall within this framework, since:

 

  • It was not intended to correct a cross-border distortion.
  • It was a national rule aimed at homogenizing prices in order to protect consumers, within the legitimate sphere of State intervention.

 

This approach clearly delimits the scope of application of Article 94, preventing any state intervention from being seen as a distortion per se, and grants States a wider margin of domestic regulation than some economic operators had argued. In this sense, the ruling recognizes that free competition is not absolute and that the public interest -such as tariff transparency or equitable access to services- may justify sectoral regulations, if they do not imply undue discrimination or barriers to Andean trade.

 

With respect to the determination of air fares, the TJCA reaffirmed that Decision 582 grants each State the power to set its own fares, if this does not contradict the principles of the Community system or affect free sub-regional competition. In this case, the obligation imposed by Aerocivil to match prices in all sales channels (including travel agencies) may limit the possibility of differentiated commercial strategies, which represents a barrier to competition.

 

  • Article 36 of Decision 608: the new standard for regulatory compatibility

 

Finally, the Court ruled on the functional limit imposed by Article 36 of Decision 608, according to which no public policy measure may “prevent, hinder or distort” competition in the subregional market. In the TJCA’s view, this principle does not imply an absolute restriction on state intervention, but rather requires such intervention:

 

  • Does not introduce unjustified barriers to the entry of operators from other member countries.
  • Does not discriminate between Andean economic agents.
  • And it does not substantially alter the conditions of effective competition in the regional market.

 

This standard requires States to evaluate proportionality and economic impact before adopting sectoral regulations. It is not a total prohibition to intervene, but a call for regulatory coherence with the principles of the Andean market, which can be exemplified by the following tripartite test to assess the validity of state measures against free competition:

Criteria Andean Community Legality of the purpose pursued Legitimate non-economic public interest (transparency, equity). Proportionality of the measure No more restrictive than necessary. Non-discrimination No preference for national operators.

 

  1. Conclusion

 

Preliminary ruling 13-IP-2023 represents a clear warning: regional integration requires member countries to harmonize their domestic regulations with Andean Community law. Although States retain regulatory powers, these are not absolute when they affect the subregional market.

 

The TJCA ruling reaffirms the need to request prior authorization from the General Secretariat of the Andean Community for any national corrective measure that has a potential impact on regional competition, even if it is applied exclusively in the territory of the member state. It also highlights the role of the Andean Committee for the Defense of Free Competition as a technical body for the evaluation and recommendation of policies.

[1] Court of Justice of the Andean Community (2025). Prejudicial Interpretation 13-IP-2023 of June 5, 2025. Official Gazette of the Cartagena Agreement, Year XLI, No. 5660, pp. 8-26.

[2] Andean Community (2004). Decision 582 – Rules for the provision of air transport services in the Andean Community. Official Gazette of the Cartagena Agreement, No. 1180.

[3] Andean Community (1999). Decision 608 – Rules for the protection and promotion of free competition in the Andean Community. Official Gazette of the Cartagena Agreement, No. 314.

[4]  Andean Community. (1991). Decision 283: Regime to prevent or correct distortions of competition caused by dumping and subsidies [Commission Decision]. General Secretariat of the Andean Community.

[5] Andean Community (1991). Decision 284: Procedures for the application of the regime on unfair trade practices [Commission Decision]. General Secretariat of the Andean Community.

[6]  Andean Community (1991). Decision 285: Regime for the settlement of disputes on unfair trade practices [Decision of the Commission]. General Secretariat of the Andean Community.

[7] Andean Community (1999). Decision 457: Rules to prevent or correct distortions of competition caused by restrictive practices to subregional trade [Decision of the Commission]. General Secretariat of the Andean Community.

 

Christian Razza
Associate at CorralRosales
crazza@corralrosales.com

From Law to Practice: The Non-Registrability of Trademarks on Grounds of Unfair Competition in Ecuador

Posted on

Within the framework of the common industrial property regime of the Andean Community, of which Ecuador is a member state, Decision 486 establishes in Article 137 an important rule for national IP offices:

“When the competent national office has reasonable grounds to infer that a registration has been applied for in order to perpetrate, facilitate, or consolidate an act of unfair competition, it may refuse such registration.”

Among the scenarios that may constitute unfair competition is the following:

“Any act capable of creating confusion, by any means, with respect to the establishment, products, or industrial or commercial activity of a competitor.”

Although this provision has been in force since the year 2000, its application by the Ecuadorian IP Office (SENADI) has historically been limited. The authority has traditionally prioritized other grounds for refusal, such as lack of distinctiveness—whether inherent or acquired—or bad faith, especially where there was a prior relationship between the applicant and the rightful trademark owner.

For years, the grounds of unfair competition were dismissed and considered by some as a matter exclusively governed by antitrust or competition law, outside the scope of trademark registration. However, in recent years, there has been a gradual shift in the IP Office´s administrative interpretation of this provision.

Jurisprudential Evolution: The “CARMEX” Case

A significant illustration of this change is found in a recent decision rejecting the registration of the mark CARMEX for goods in Class 03, including bleaching preparations, soaps, cosmetics, and essential oils, among others.

The application, filed by an Ecuadorian citizen in 2020, was opposed by the owner of the CARMEX trademark in multiple foreign jurisdictions, including the US, UK, Brazil, Mexico, and China. The opposing party alleged that the application constituted an act of unfair competition and a breach of the principle of good faith.

In a decision issued in May 2025, the Ecuadorian IP Office ruled as follows:

  • The argument concerning foreign registrations was dismissed on the basis of the principle of territoriality, enshrined in trademark law.
  • The opposition was upheld, recognizing that the use of the applied-for mark constituted an act of unfair competition through imitation, considering the prior use of the CARMEX mark in other markets. This could potentially mislead consumers and unduly benefit from the opponent’s reputation.

The IP Office concluded that granting the registration would run contrary to the principles governing fair market competition. It emphasized that the intellectual property system must protect not only the trademark owner´s interests, but also those of consumers and market balance.

Legal Implications

This decision marks a significant shift in Ecuadorian administrative practice, as it effectively incorporates the analysis of unfair competition as an autonomous ground for refusal. It aligns with the principles of integrity in the industrial property system and commercial loyalty.

The resolution also reflects a more flexible interpretative approach, more consistent with the globalized nature of commerce, acknowledging that the principle of territoriality, though still valid, should not be rigidly applied when it results in the improper appropriation of well-known or widely used marks.

Final Reflection

The recognition of unfair competition as a legitimate ground for refusal of trademark registration is a meaningful step toward a more comprehensive application of trademark law. In a landscape where commercial practices evolve constantly, IP Offices must adopt dynamic criteria that provide effective protection against practices that distort the market and undermine legitimate rights.

Ecuador’s experience in this case sets a valuable precedent not only at the national level, but also as a regional reference for Andean countries and other jurisdictions facing similar challenges at the intersection of trademark law and competition law.

Such decisions -and any that help guarantee and uphold the rights of trademark owners- are a welcome development.

 

María Cecilia Romoleroux
Socia en CorralRosales
maria@corralrosales.com

 

Katherine González
Asociada senior en CorralRosales
katherine@corralrosales.com

Application by distributor rejected on grounds of bad faith and unfair competition

Posted on
  • An application for GOLOKO was opposed based on the marks FOUR LOKO and the contractual relationship between the parties in Peru
  • While the Ecuadorian IP Office rejected the opposition, an action for industrial property rights infringement was upheld in Peru
  • The Ecuadorian IP Office overturned the first-instance decision, finding bad faith and unfair competition on the applicant’s part

Trademark registration is a key mechanism for protecting IP rights. However, this procedure is not always straightforward or legitimate, and there are cases where trademark applications may be rejected due to bad faith or unfair competition.

For example, trademark applications have been submitted by distributors which, in the absence of a trademark registration in Ecuador, have attempted to register the relevant trademark despite a distribution agreement confirming that ownership belonged to its legitimate owner, the grantor.

In a recent case, the Ecuadorian IP Office issued an interesting resolution denying the registration of a trademark on the ground that the application constituted an act of bad faith and unfair competition.

Background

Food For Life EIRL applied to register the trademark GOLOKO for goods in Class 33. This application was opposed by Phusion Projects LLC based on the marks FOUR LOKO, registered in Class 32, and the contractual relationship between the parties in Peru.

Phusion Projects and Food For Life maintained a contractual relationship, as the applicant had been an authorised distributor of FOUR LOKO-branded goods in Peru for several years. Therefore, at the time of the trademark application for GOLOKO, the applicant had full knowledge of the existence, ownership and recognition of the FOUR LOKO marks.

The IP Office rejected the opposition, considering that there were sufficient differences between the marks to avoid confusion among consumers. However, the contractual relationship between the parties was not analysed.

In parallel, a complaint for industrial property rights infringement was filed in Peru against Food For Life and its related company, Servicios Exal SAC, for manufacturing, marketing, distributing and promoting beverages under the GO LOKO marks. Injunction measures were requested against use of these marks, claiming that, in addition to the visual and aural similarities between the marks, the packaging of the contested goods was highly similar to that bearing the registered trademark.

The action was upheld in Peru, serving as primary evidence that the application filed in Ecuador constituted an act of unfair competition and bad faith.

Decision

The Ecuadorian IP Office, through Resolution OCDI-2025-167, overturned the first-instance decision, accepted the opposition filed by Phusion Projects and denied the registration of the GOLOKO trademark.
The main arguments for finding bad faith and unfair competition on the part of the applicant were as follows:

  • Food For Life intended to compete in the Ecuadorian market with a mark that could be confused with an already registered trademark; and
  • Food For Life, as a distributor of Phusion Projects in Peru, was aware of FOUR LOKO’s market penetration and recognition.
  • Food For Life intended to use this knowledge to its advantage by registering a confusingly similar mark.

Comment

With this resolution, the Ecuadorian IP Office set a groundbreaking precedent for the protection of trademarks which, due to their notoriety and market positioning resulting from their owners’ advertising efforts, are attractive to competitors seeking to obtain unfair benefits.

The rejection of trademark registrations on the ground of bad faith and unfair competition is an essential mechanism to ensure fairness in the market and protect IP rights. In cases where there is a distribution agreement between the applicant and the opponent, the evaluation of the application becomes even more crucial, as prior agreements between the parties play a significant role in determining the legitimacy of the registration. Companies and distributors must act transparently under commercial contracts
and intellectual property laws to avoid conflicts and ensure proper market competition.

 

Andrea Miño
Associated in CorralRosales
andrea@corralrosales.com 

Crackdown on intellectual property rights infringement

Posted on

CorralRosales’ in close collaboration with the authorities, conducted a significant operation, resulting in the seizure of more than 18,000 counterfeit shoes.

Distributing these infringing products nationwide infringed upon registered and widely recognized intellectual property rights. Following the due legal process, penalties may include fines and destruction of the infringing goods.

Such illegal activities aim to mislead consumers and profit from the reputation of established trademarks.

By reinforcing enforcement efforts, we help ensure a safer and more transparent market and keep counterfeits out.

This milestone reaffirms our unwavering commitment to combat intellectual property infringements and protect the market from illegal and deceptive practices. It also highlights the importance of ongoing vigilance and strong action to disrupt the supply chain of infringing goods.

#IntellectualProperty #IPR #Enforcement #AntiCounterfeiting #Quito #BrandProtection #LegalAction #MarketIntegrity

Andean Community: Non-commercial use of well-known marks and infringement actions – new jurisprudential precedents

Posted on

The Andean Community law states that the registration of a trademark confers on its owner two rights: (i) a positive right, which consists in the use, assignment, or licensing of the trademark, and (ii) a negative right, which gives the right to prevent third parties from registering identical or similar trademarks and from using it in the market without authorization. According to Article 155 of Decision 486 of the Andean Community Commission, the owner can take legal action against anyone who infringes these rights, provided that specified requirements are met.

In Prejudicial Interpretation No. 243-IP-2022, the Court of Justice of the Andean Community clarified the concept of negative rights. It stated that non-commercial trademark use cannot be used as grounds for infringement actions. The Court provided examples of non-commercial use, such as when a consumer, who is not a business or competitor of the owner, expresses disagreement with purchased products or services as an exercise of the freedom of expression.

The court also stated that well-known trademarks have special protection against unauthorized use by third parties, even for non-commercial purposes on an exceptional basis. It confirmed that, under certain circumstances, an action may be filed for unauthorized use.

On July 17, 2024, Prejudicial Interpretation 237-IP-2021 expanded the interpretation of the use of well-known trademarks by third parties for non-commercial purposes. The following special conditions for owners of well-known trademarks to prohibit their public use for non-commercial purposes were set:

  • Performing acts of public use of the notorious mark which are unrelated to the commercial use of the well-known mark.
  • Public use must cause damage to the well-known mark, which has materialized in the dilution of its distinctiveness and commercial or advertising value. This use must affect the distinctiveness or notoriety and not only its image.
  • The damage must be accurate, objective, and concrete, not a subjective perception or presumption. It must be proven; without damage, there is no infringement.
  • The damage must be unfair, i.e., the public use of the notorious trademark must be contrary to the Law.

Regarding this last requirement, the Court states that if the use of the notorious trademark implies exercising a right, there would not be unfair damage. However, it would dilute its distinctive force, commercial, or advertising value.

A consumer could file a formal complaint before the pertinent authorities or informally before his family, work, or social environment concerning the products or services identified under a registered trademark without this being considered an infringement of trademark rights. In the same way, if the trademark owner believes that this claim affects its prestige, actions could be brought if appropriate.

On the other hand, the Court firmly states that there is no trademark infringement or use of a trademark when individuals refer to a trademark or trade name in exercising their freedom of
expression petition, protest (peaceful), or complaint right.

Through this interpretation, the Court corroborates that the negative right (ius prohibendi) of the trademark owner is not unlimited, even for well-known trademarks, so that the use by third parties for non-commercial or industrial purposes cannot be considered an infringement of industrial property rights.

 

 

Andrea Miño
Associated in CorralRosales
andrea@corralrosales.com 

American Privacy Rights Act: a bill that promises a radical change for privacy in the United States

Posted on

Respect for the privacy of personal data has become particularly important in the digital era. Companies and governments collect and process information about our daily activities, which makes it essential to have rules that adequately protect the privacy of citizens.

A step towards data protection in the United States.

Although the United States does not have a specific federal law on data protection, an important step was taken on April 7, 2024[1], Republican Congress Cathy McMorris Rodgers and Democratic Senator Maria Cantwell, both from the state of Washington, introduced a federal privacy bill called the American Privacy Rights Act (APRA).

This bill creates a comprehensive regulatory framework for the protection of personal data in the United States. It is a significant step forward towards greater privacy protection for U.S. citizens.

Key aspects of APRA and its relationship with Ecuador.

APRA[2] addresses various aspects contained in most of the laws on the subject, including that of Ecuador, among them:

  1. Data Minimization: Limits the collection of personal data to the minimum necessary for the intended purpose.
  2. Transparency in privacy policies: Requires companies and suppliers to provide clear and accessible information about their data collection, use, and disclosure practices.
  3. Rights management: Grants individuals the right to access, rectify, and delete their personal data. In addition, the right to opt out of receiving targeted advertising.
  4. Designation of a Privacy or Data Security Officer: Establishes the obligation to designate an officer responsible for data security, who must be qualified and have the experience to perform the position effectively.

APRA news.

The APRA federal bill incorporates aspects related to artificial intelligence (AI) and data. These include:

  • Restricting the volume of data used in AI development: Applies the minimization principle to limit the amount of personal data used in the training and operation of AI systems.
  • Concept of “covered algorithms”[3]: Defines “covered algorithms” as any computational process that decides or facilitates human decision-making using data. This definition covers a wide range of AI systems, from the simplest to the most complex.
  • Obligations for entities using covered algorithms: Entities using covered algorithms will have multiple obligations, among which the most important are:
  1. Design evaluation: Evaluate the design of the algorithm to identify and reduce the risk of potential damage.
  2. Impact assessment: Evaluate the impact of the possible effects of the algorithm on individuals and society.
  3. Notice and opportunity to opt out: Provide the ability to opt out of the use of a covered algorithm if it is used to make “consequential decisions” (decisions that significantly affect an individual’s access to or enjoyment of essential goods or services).

Implications for Ecuador.

The enactment of APRA would have a significant impact in Ecuador, especially in the following aspects:

  1. Transborder data flow: It will facilitate the transfer of data between the United States and countries with equivalent data protection standards, such as Ecuador. This translates into:
  • Simplification of processes: Administrative and legal burdens are reduced for companies transferring data between the two countries.
  • Cost reduction: Costs associated with data transfer, such as implementing additional security measures, are minimized.
  1. International cooperation: It will allow international cooperation on data protection between the United States and other countries, including Ecuador. This will allow Ecuadorian authorities to:
  • Safer information sharing: Collaborate on investigations and data protection cases involving U.S. companies.

In conclusion, once approved, the APRA bill will represent a significant advance towards data protection in the United States and will have clear impacts in other countries, including Ecuador, as expressed in previous paragraphs.

[1]  https://energycommerce.house.gov/posts/committee-chairs-rodgers-cantwell-unveil-historic-draft-comprehensive-data-privacy-legislation

[2]https://d1dth6e84htgma.cloudfront.net/American_Privacy_Rights_Act_of_2024_Discussion_Draft_0ec8168a66.pdf

[3]  https://www.whitecase.com/insight-alert/proposed-american-privacy-rights-act-seeks-establish-comprehensive-national-framework

 

Thalía Ordoñez
Associate at CorralRosales
tordonez@corralrosales.com

1 2 3 … 9