Tag Archives: Ecuador

“The concept that trademark registration grants ownership of and exclusive rights to use a trademark to identify and protect the goods and services for which it was registered is accepted worldwide”.

“When the IP Office grants a trademark registration, it confers rights and obligations to the owner, including the ability to oppose a third party’s application for an identical or confusingly similar trademark. As part of the opposition proceedings, the defendant may submit evidence to refute the opponent’s allegations”, as explained by our associate Andrea Miño in an article published in WTR.

Miño recalls that “in recent years, it has become common practice for an applicant whose mark is being opposed to submit evidence demonstrating that the use of the opponent’s mark is limited to specific goods or services, in an attempt to minimise the risk of confusion between the conflicting marks”.

In some of these cases, she adds, “the IP Office considered these allegations to be valid and allowed the registration of trademarks similar to previously registered trademarks – thus erroneously applying the specialty principle, which directly affects registration rights, one of the fundamentals of trademark law. Such ex officio restriction of the goods was a clear overreach of the examiner’s powers, in violation of the trademark owner’s rights”.

Our associate analyzes a recent case examined by the Intellectual Property Office in an opposition proceeding in which an applicant downloaded content from the opponent’s website in order for the Intellectual Property Office to consider only the products offered on that website (pharmaceutical products for the treatment of hypertension and heart failure), despite the fact that the trademark on which the opposition was based was granted for pharmaceutical, among other products.

The applicant sought to obtain the registration of a confusingly similar trademark to protect other types of pharmaceuticals (medicines for respiratory diseases).

Resolution No OCDI-2023-291 sets an important precedent whereby, in opposition proceedings, the registration rights must prevail over the use of the mark in the market. The decision makes it clear that, in order to obtain the limitation of a registration, there are other legally established proceedings, which can also be used as a defence in the opposition proceedings.

If you want to read the complete article, click here.

The entry into force of the EU General Data Protection Regulation in May 2018 prompted the creation and adaptation of different regulations on personal data protection worldwide. Ecuador was no exception, and on May 26 2021 the Organic Personal Data Protection Law (PDPL), the first law in Ecuador focused exclusively on regulating and guaranteeing personal data protection, entered into force.

Two years later, as stipulated by law, the corrective measures and the sanctioning regime have come into force. Our associate Rafael Serrano writes on this matter in IAPP.

Serrano points out that “as of May, and since the publication of the PDPL, and private entities have been obliged to undertake adaptation processes that have meant significant challenges for them, which have deepened due to the lack of regulation for the application of the PDPL, as well as the lack of creation and designation of a data protection authority”.

These difficulties, he says, “added to the technical, legal and procedural actions the regulated entities adopted, have undoubtedly generated great uncertainty regarding compliance with and application of the PDPL”.

As of May 26, according to Serrano, “a new stage in the protection of personal data in Ecuador will begin. The risks can be significant, as fines can reach up to 1% of the fiscal year’s turnover immediately before the fine’s imposition”.

He states that the law generates a new regulatory regime that positions Ecuador at an international level since, even with all the risks mentioned above, it also presents great opportunities.

“Compliance with this regulation will improve processes and information systems, and help Ecuadorian companies strengthen their corporate images in the international market. In this sense, companies must begin to mitigate risk by implementing certain documents and security measures”.

If you want to read the complete article, click here.

On January 21, 2023, President Guillermo Lasso Mendoza filed a partial objection for unconstitutionality to the “Draft Organic Reformatory Law of Various Legal Bodies, for the Strengthening, Protection, Impulse and Promotion of Popular and Solidarity Economy Organizations. Artisans, Small Producers, Micro-enterprises and Enterprises” (“Bill”). Our associate Christian Razza writes about it for The Legal Industry Reviews (LIR).

Razza recalls that on March 1, 2023, the National Assembly informed the Constitutional Court (“Court”) of the presidential objection, so that it may issue the respective opinion on the constitutionality of this norm that reforms the Organic Law of Regulation and Control of Market Power (“LORCPM”).

In this regard, it adds that on March 30, 2023, by means of Opinion No. 2-23-OP/23, the Court resolved the partial presidential objection on grounds of unconstitutionality, declaring the objections filed against:

1. Conferring to the Superintendency for the Control of Market Power (“SCPM”) the competence to regulate the modification or elimination of public aid and pricing policies.

In this regard, Razza emphasizes that “the Court pointed out that these provisions contravene Articles 132 paragraph 1, 147 paragraph 3 and 213 of the Constitution of the Republic of Ecuador (“CRE”) since the creation, definition, elimination and modification of any type of pricing policies and public aid are not within its competence”. 

2.Granting the SCPM the power to issue recommendations on the modalities of competition in the markets of a binding nature only for public entities.

Razza points out that “paragraph 17 of the second reforming provision of the Bill allows the SCPM to review in a binding manner the pricing policy implemented by the Executive Branch”.

Therefore, the Court points out that “the Court states that granting the SCPM’s recommendations the ‘binding’ character implies that it is attributed a competence that exceeds the provisions of Article 213 of the CRE for the cases of the superintendencies. Consequently, it resolves that the recommendations coming from the SCPM must have only an optional character”.

If you want to read the complete article, click here.