LexLatin – Ecuador brings its new personal data law to international standards

LexLatin - Ecuador brings its new personal data law to international standards - CorralRosales - Lawyers Ecuador

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DATE: 27-05-2021

CORRALROSALES IN THE NEWS:

Rafael Serrano

MEDIA: LexLatin

Ecuador will publish in the coming days its first Personal Data Protection Law in the most European style after a long time working on it.  Our senior associate Rafael Serrano writes about it in LexLatin.

This great advance for Ecuador, although the right was guaranteed since 2008 but without a norm that would regulate it, will allow companies to have a refined database with globally homogenized standards and, above all, to have greater protection of the personal information.

In the words of Rafael Serrano, “it is about establishing a framework of parameters to process correct information”.

All those people who store information that identifies or makes any individual identifiable, directly or indirectly, and in any type of support, will be affected by this rule.

To review whether the law is being complied with, a personal data protection authority has been created. “If the president does not veto the project, this authority, the Superintendency, will be independent and with overseeing power in both the private and the public sectors,” adds Serrano.

In addition, this law has established parameters for international communications and transfers with personal data. It has also stablished rights so that consultation, digital education, and girls, boys and adolescents would not be the subject of a decision based solely or partially on automated valuations.

Serrano points out, “one of the most discussed issues was whether or not there was a need to create a record of the databases in the possession of those responsible. This does not mean that this information is delivered to the Superintendency to create a large database, but rather that what is delivered responds to statistical purposes: for example, what data is being processed and how many databases are there”.

The law establishes that the consent for a person to be registered in a database will only be valid when it is manifested freely, specifically, informed and unequivocally.

Information from companies to the owner of personal data

As Serrano explains, the information required by companies is “the purpose of the data treatment, the legal basis, the types of treatment that exist, the time of their conservation, the existence of a database , the purposes, a contact person in charge, the transfers that are intended to be made and the existence of automated evaluations and decisions, among others”.

“Those responsible for the processing of personal data are obliged to sign confidentiality contracts and proper handling of personal data with the person in charge and the staff in charge of the processing of such personal data or whoever has knowledge of the personal data, in addition to using technologies to mitigate and evaluate the performance or the violations that their protection mechanisms may have ”, concludes Serrano.

If you want to see the article, click here

AIPPI – Mandatory licensing of pharmaceutical patents in Andean countries

AIPPI - Mandatory licensing of pharmaceutical patents in Andean countries - CorralRosales - Lawyers Ecuador

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DATE: 25-05-2021

CORRALROSALES IN THE NEWS:

María Cecilia Romoleroux

Gabriel Kuri

MEDIA: AIPPI

Pharmaceutical patent licenses are generally granted by means of agreements freely executed between the patent holder and the person authorized to exploit the invention. However, this is not always the case, since in some exceptional cases, they are granted by order of the authority under the conditions set forth in the Law. Our partner, María Cecilia Romoleroux, and our professional technician, Gabriel Kuri, write about this for AIPPI Ecuador.

The Commission of the Andean Community of Nations -CAN- provides for the granting of compulsory licenses for reasons of public interest, emergency or national security, if there are practices that affect free competition, and when requested by the holder of a patent, provided that it necessarily requires the use of another patent. This requires the prior notice to the licensee, whenever possible, and a specification of the period for which it is granted, the object of the license, the amount, and the conditions of the financial consideration. 

In 2009, the Ecuadorian Government declared access to medicines used in the treatment of certain diseases that affect the population and that are a priority for public health, as a matter of public interest. As a consequence, it declared the possibility of granting compulsory licenses. “In addition, it declared that, in principle, all medicines and agrochemicals would be subject to compulsory licensing as there are basic concepts that prevail over commercial interests,” add our experts.

For this reason, while recognizing the right of each country to order compulsory licenses for patent-based medicines under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), Ecuador declared access to medicines used in the treatment of priority diseases to be in the public interest.

Last March 2021, the Andean Court of Justice issued a preliminary ruling (interpretación prejudicial) stating that ” among the situations in which the competent national offices have the power to grant compulsory licenses, are those related to reasons of public interest, emergency, or national security “, they add. Therefore, the granting of a compulsory license does not affect the right of the patent holder to continue exploiting the patent.

Our experts, based on their experience, state that “the granting of a compulsory license requires that the competent authority of the Member Country evidences, explains and adequately and sufficiently substantiates the reasons of public interest, emergency or national security, as well as the need to adopt such measure, which must meet three reasonableness requirements”. “It must also substantiate the reasons that justify that, under these circumstances, it is essential to grant a compulsory license.”

“The preliminary ruling clearly establishes that it is not enough to simply state one or more  conditions included in Article 65 of Decision 486, but that these must be explained, detailed and even individualized for each case,” they conclude.

If you want to see the article, click here

World Trademark Review – Contradictory criteria for the examination of trademarks in similar cases in the Andean Community

World Trademark Review - Contradictory Criteria for the Examination of Trademarks in Similar Cases in the Andean Community - CorralRosales - Lawyer Ecuador

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DATE: 11-05-2021

CORRALROSALES IN THE NEWS:

Katherine González

Our associate Katherine González, specialist in Intellectual Property, has published a new article in  World Trademark Review on the contradictory criteria for the examination of trademarks in similar cases in the Andean Community.

In the words of our expert, “It’s the principles of primacy and direct effect on the obligation of member states to optimize the specialized legal system to ensure strict and uniform compliance with Andean community regulations. At the same time, the principle of autonomy empowers the competent offices to issue resolutions without affecting the decisions adopted by other member countries or their own; however, the decisions must be issued in strict adherence to what is established in the regulations and jurisprudence that governs the trademark area at the community level”.

Taking this context into account, the decisions issued by the IP offices of Ecuador, Colombia and Peru should be analyzed, since the criteria given are contradictory for the registrability of the same trademark intended to cover identical products.

Our associate also states in this publication that “In the case of Ecuador, Resolution No. 0004531, the National Industrial Property Directorate of the National Intellectual Rights Service (SENADI), determined that the same trademark, which protected class 5 products, did not meet the requirements for registration, since it was included in one of the grounds for refusal of registration provided for in the Andean Community regulations; that is, the trademark made direct reference to the products it intended to identify”.

SENADI, however, ignored the mixed nature of the trademark and only established that the trademark applied for “was not distinctive because it was a generic and descriptive term, and commonly used.”

If you want to see the article (under registration), click here

Enfoque – Customer service and experience

Enfoque - Customer service and experience - Lawyers Ecuador - CorralRosales

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DATE: 20-04-2021

MEDIA: Enfoque

Our firm, CorralRosales, reappears in the media as one of the renowned law firms in Ecuador. This time, Enfoque Magazine publishes an article on the legal firms that focus on the traits most required by companies and individuals when hiring a legal service, such as proven experience, track record, good reputation, and knowledge of the sector. The article dedicates a few lines to CorralRosales in these areas.

With more than 40 years in the market and extensive experience in areas like aeronautical, banking and financial, foreign trade, corporate, public procurement, commercial, competition, mergers and acquisitions, labor, dispute resolution, intellectual property, data protection, and tax and customs, CorralRosales has appeared this year in the most prestigious rankings of international directories, such as Chambers & Partners, Legal 500, and IFLR100. We have also been part of the specialized publications IP Stars and WTR and referenced by Enfecto Magazine.

Our recognitions and good work in the workplace have allowed us to be part of the international network TAGLaw and the specialized association L2B Aviation.

In the words of our partner Xavier Rosales, “Our firm provided the constructor of the Quito Metro project as well as the contractor of the Puerto Bolivar port terminal sound advice.” “On other issues, such as intellectual property, we recently achieved the most important border measure in the history of the country when SENADI confirmed the adoption of said measure regarding the import of a container with more than 600,000 counterfeit products of different brands… Fighting piracy has become a way of life for us”, adds Rosales.

Enfoque Magazine also echoes the great team that makes up our firm. “CorralRosales has approximately 40 lawyers and five professional technicians in offices in Quito and Guayaquil,” they added.

If you want to see the article, click here.

CorralRosales among the five most popular firms in Ecuador employed by International Legal Management Offices

CorralRosales among the five most popular firms in Ecuador employed by International Legal Management Offices

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DATE: 07-04-2021

MEDIA: Latin Lawyer

The prestigious Latin Lawyer media has published its latest report entitled: “Who Represents Latin America’s Biggest Companies?”. CorralRosales stands out among the five most popular firms in Ecuador employed by legal management offices in the last year.

In recent months, and because of the COVID-19 pandemic, law firms have had to adapt to a new and complex situation. They have seen their customer relationships and expectations change. During 2020, external lawyers have been an important help for the companies’ legal services. CorralRosales has undoubtedly adapted to the “new normal” and Latin Lawyer acknowledges this in its recent yearly report.

Our firm, CorralRosales, appears among the most popular Ecuadorian firms along with other large law offices. For this report, an investigation is carried out by LACCA (Latin America Corporate Counsel Association), based on the 100 firms with the highest income in the region. The initial sorting order considers income for the last full year, headquarters and their subsidiaries as a whole, news and articles on agreements and cases related to these firms.

CorralRosales is proud to appear in this renowned Latin Lawyer report. We thank all those who have made it possible for our firm to continue growing. We will keep working hard to provide our customers with the best service.

Thanks again. Congratulations team!

If you want to see the article (under registration), click here.

Ecuador´s Preliminary draft of the Data Protection Law – IAPP

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DATE: 18-03-2021

CORRALROSALES IN THE NEWS:

-Rafael Serrano

MEDIA: IAPP

For the first time in history, Ecuador will have a Data Protection Law that will follow the European normative standard. Our associate Rafael Serrano, a collaborator for the IAPP blog, writes about it.

Despite never having had a specific law, data protection in Ecuador is restricted and limited by the various laws that include this particular legislation, such as the Telecommunications Law, the Electronic Commerce Law, the Criminal Law, and the Financial and monetary law.

After two significant circumstances in the country, the government determined it essential for the country to have its own law.  It would protect Ecuadorian citizens’ data, allowing the authorities to take action if it was not complied with. One of the revealing events was a data breach that affected practically the entire population. The other one corresponds to the evolution of the Data Protection Law in other countries. This limits Ecuador when it comes to transferring data internationally.

The current bill, which is currently being debated in Congress, contains 76 articles and 12 chapters focused on the following aspects:

Extraterritorial scope

Processors and controllers who offer services and goods to Ecuadorian residents but as long as they are located outside of our country.

Data protection principles

As published by Serrano, “the bill recognizes many of the data protection principles accepted throughout the world, such as limitation of purpose, transparency, confidentiality, limited retention, responsibility and accuracy of data, guidelines established and obligations for data processors and controllers.”

Lawful basis for the processing of personal data

With this draft Law, there will be contractual and pre-contractual obligations, the protection of vital interests, the processing of data from public databases, and the exercise of tasks carried out in the public interest or exercise of public powers.

New data subjects rights

The law will include the right to information, access, rectification, deletion, cancellation, the right to object, not be subject to a decision based on automatic processing, portability, and the right to be forgotten. Some exceptions will also be recognized.

Special categories of data

It will be necessary to give explicit consent to process data that is categorized as special. That is sensitive data, those related to health, financial, and minors’ data.

Security measures

Processors and controllers must implement various security measures and adopt technical measures that will depend on the volume and type of the data processed.

DPO

There must be a data protection officer as the data controller. All authorities must have a DPO; the rest of the companies will depend on the purpose, scope, and data they process.

International data transfer

The transfer of data to other countries and territories will be allowed, provided that their security is guaranteed.

DPA

“The bill creates the Data Protection Superintendency as the new DPA. The Superintendency is an autonomous institution. The Superintendent will be appointed following the procedure established in the Constitution”, indicates Serrano.

Sanctions and liabilities

The new Law, according to its project, will establish infractions if what is indicated in it is not fulfilled. “The data processor and controller can be penalized between 3% and 17% of their annual income from the previous year,” he concludes.

If you want to see the article, click here.

Legal analysis of how to do business in Ecuador

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DATE: 23-02-2021

CORRALROSALES IN THE NEWS:

-Andrea Moya

-Rafael Serrano

-Marta Villagómez

MEDIA: Idealex

“ExpoMembers,” the virtual fair organized by the Ecuadorian-German Chamber of Industries and Commerce (AHK), took place in February. Some of our lawyers have been able to participate in the event, and Idealex has echoed the news.

Andrea Moya- partner of the firm and specialist in International Tax Law, Rafael Serrano- senior associate and director of the Data Protection area, and Marta Villagómez- an associate specialist in the Labor Law area, spoke from different perspectives of Law at the opening of the event on “How to do business in Ecuador? A legal analysis from the corporate, labor, tax and customs perspective.”

Each of the lawyers presented their point of view from the area of ​​specialization that they lead. So, Rafael Serrano stated that “the main benefits of investing are the low inflation rate concerning the US dollar; and a good transport infrastructure, which facilitates the mobility of goods and services. There is also a network of commercial and double taxation agreements ”.

He also added the legal regime in Ecuador as another of the main advantages due to laws that “facilitate, promote, and protect investment.”

From another angle and referring to the corporate area, he added that there is a company law that admits that foreign investment does not need express authorization from the control body and the appearance of Simplified Corporations.

Marta Villagómez analyzed some novelties related to the implementation of new employment contracts that are less rigid than the permanent one, such as that of entrepreneurs, work or service, and productive sectors. With these, it will be possible to “establish deadlines, analyze conditions” and thus “use the one that suits the needs of each company.”

She affirmed that companies must grant job stability to their employees and comply with the minimum wage and the corresponding working hours.

Finally, Villagómez included that there must be a mutual agreement between both signing parties; wait for the expiration term or notify the worker 15 days in advance; the Ministry of Labor must authorize it, and the employee has to be compensated after dismissal to finalize a labor contract ”.

Andrea Moya explained that companies are subject to three taxes: “income, which is equivalent to 25 to 28% of the investment; added value, which corresponds to 12%; and exit of currencies, which is 5% of the total amount”.

However, and in conclusion, there are some incentives that help those who want to invest in Ecuador, such as the general incentive, by economic sector, by tourist area, by ZEDE (Special Economic Development Zone), and by APP (Public Associations- Private and Foreign Investment).

If you want to see the article, click here.

World Trademark Review – Stricter requirements for proving use of a trademark through invoices

world-trademark-review-los-requisitos-mas-estrictos-para-probar-el-uso-de-una-marca-comercial-mediante-facturas-abogados-ecuador

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DATE: 21-01-2021

CORRALROSALES IN THE NEWS:

-Katherine González

Our associate Katherine González is publishing an article in the specialized media World Trademark Review in which she explains the new criterion of the SENADI (National Services for Intellectual Rights of Ecuador) regarding proving the use of a registered trademark through invoices.

The article begins by detailing some aspects of Decision 486 of the Andean Community, which establishes that a trademark may be canceled if it has not been used during the last three years by its owner or by an authorized third party or a licensee in any country of the Andean Community (Ecuador – Colombia – Peru – Bolivia), for the products or services for which it was granted.

González indicates that SENADI, when examining the evidence filed as a defense in this type of actions, usually had valued the invoices as evidence of use, provided that the final recipient was in one of the countries of the Andean Community, regardless of the country of origin of the invoice. However, this criterion has been modified.

Recently, SENADI has stated that additional evidence will be required to demonstrate that the goods have been commercialized in the Andean market. In this regard, SENADI will consider “if the protected products or services were actually available in the Andean market in the form and quantities that correspond to the nature of the goods or services.”

González states that “the basis for this decision is that, although an invoice indicates that a good or service has been commercialized, it does not confirm that the goods have entered the Ecuadorian market. Therefore, any invoice issued in a country that is not part of the Andean Community must be accompanied by proof that the good entered the country and, in some cases, even that it is offered in the local market. “

Our associate also reminds us of the high levels of formalities of the documents required when filed as a defense in cancellation proceedings.

If you want to see the article (under registration), click here.

Derechos Intelectuales Vol. 25 – Theoretical approach to the patent and compulsory licensing regime in Ecuador

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DATE: 23-12-2020

CORRALROSALES IN THE NEWS:

-Katherine González

MEDIA: ASIPI

Katherine González, CorralRosales’s associate, wrote for the book “Intellectual Rights Volume 25”, published by the Inter-American Association of Intellectual Property (ASIPI). She wrote a complete chapter on the theoretical approach to the regime of patents and compulsory licenses in Ecuador; the chapter has three main sections, each one explained in depth: intellectual property, patents, and compulsory patent licenses.

ASIPI gives González the opportunity to explain the subject of invention patents and compulsory licenses in a direct and straightforward way. Her main objective is to help as many people as possible understand this topic and be able to access, in this way, a more in-depth technical and specific knowledge in this area.

Gonzalez does her analysis using national and international instruments that govern the matter, which allows her to compare them directly, “seeking a comprehensive interpretation.”

Without losing sight of the pandemic caused by COVID-19, which has changed the plans for 2020, our associate wanted to dedicate the last section of her chapter to compulsory licenses on medicines within the said pandemic framework.

In conclusion, González explains that the Intellectual Property area has usually been divided into two main branches: ‘Copyright and “Industrial Property”. Copyright protects literary, artistic or scientific creations, which are original and can be reproduced or disclosed by any form or medium known or to be known. This branch includes neighboring rights, referring to the rights of third parties related to the author, such as interpreters, producers of phonograms, and radio broadcasters. On the other hand, we find ‘Industrial Property’, which includes trademarks, industrial designs, geographical indications, and patents. “

If you want to read the full chapter of the publication Intellectual Rights Volume 25 (under registration), click here.

El Comercio – Hemp seeds are approved in Imbabura and Pichincha

el-comercio-en-imbabura-y-pichincha-se-aprueban-semillas-de-canamo-abogados-ecuador-thc

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DATE: 16-12-2020

CORRALROSALES IN THE NEWS:

-Felipe Samaniego

MEDIA: El Comercio

Felipe Samaniego, partner at CorralRosales and leader of the Ecuadorian Association of Cannabis Industries, has participated in an article published by the digital medium El Comercio. It reports on the approval of hemp seeds in the Ecuadorian provinces of  Imbabura and Pichincha.

A cultivation of 140 cannabis plants is part of the first valuation analysis carried out by the National Institute of Agricultural Research (Iniap). It is estimated that in the summer of 2021 the research carried out will already offer results on the legal development of hemp in Ecuador, with a view to its production.

The cannabis, soon, will be harvested and will go to the next phase: drying in the dark, according to Jorge Merino, a researcher from the Santa Catalina Experimental Station. After this process, the cannabis will be analyzed in a laboratory with a mass chromatograph to separate the components and thus be able to quantify them.

The tests, as indicated in the article, will be carried out in different areas: two in Imbabura and one in Sangolquí.

Scientists observe the progress of the tests carried out, as does Felipe Samaniego, who explains to El Comercio that “fabrics, chocolates, cosmetics and more products are made from hemp. It is estimated that in 2022 the local industry will manufacture products and export them”.

The cost of the licenses to develop this industry was approved and it is now the Ministry of Agriculture (MAG) that implements the procedures.

If you want to read the full article, click here