Enforcement against intellectual property infringement in Ecuador remains challenging. In April 2016, the United States Trade Representative moved Ecuador from Priority Watch List to Watch List in its annual Special 301 Report on Intellectual Property, and Ecuador has remained on the Watch List since then.
The legislation that covers intellectual property (IP) rights in Ecuador is the Organic Code of the Social Knowledge Economy (Ingenuity Code), in force since December 2016. In December 2020, the National Service of Intellectual Rights (SENADI) issued implementing regulations for the Ingenuity Code. The regulations do not address concerns raised by the U.S. Government and various stakeholders on matters such as copyright exceptions and limitations, patentable subject matter, and geographical indications (GIs), including opposition procedures for proposed GIs, the treatment of common food names, and the protection of prior trademark rights.
The protection of intellectual property rights in Ecuador is consistent with those applied by the Andean Community (CAN) countries (Ecuador, Peru, Colombia, and Bolivia), mainly for the rights established in Decisions 486 (on Industrial property) and 351 (CAN copyright). As these originate from international agreements, they prevail over local regulations. Thus, trademarks, brands, and other distinctive signs have significance within other countries in the region when dealing with specific actions such as Andean oppositions to trademark applications or the right of priority for patents.
In June 2023, the government issued Decree 783, declaring the fight against smuggling and the under-invoicing of goods in foreign trade as a “matter of national interest”. The Ministry of Production and Ecuador’s Customs Service (SENAE) must establish the mechanisms to strengthen the risk management system and customs control in the face of possible situations of customs fraud, money laundering, and other illegal operations that generate a negative impact on productive activities, trade, and the collection of taxes.
Customs enforcement on an ex-officio basis is weak, including actions against goods in transit. Ecuador has strengthened actions in defense of IP rights, evidenced by changes included in Ingenuity Code regarding compliance, monitoring, and enforceability. SENADI handles enforcement in case of IP violations. There are provisions for filing both administrative (with SENADI) and judicial proceedings, and either civil or criminal procedures. Ecuador is hindered by a lack of ex-officio authority for SENAE to investigate potential cases of counterfeit goods. SENADI does not act ex-officio but through submissions by rights holders. The institution has limited enforcement capacity and remains hampered by a lack of funding and personnel due to budget cuts. SENADI handles the registration of trademarks, patents, copyrights, plant varieties, and traditional knowledge.
Protected rights and their expiration periods are as follows:
- Trademarks: 10 years, renewable period
- Patents: 20-year non-renewable period
- Copyrights: through the author’s life and 70 years after their death.
SENADI has developed a virtual platform aimed at reorganizing its processes and requirements. For more information visit SENADI´s web page: https://www.derechosintelectuales.gob.ec/. There is also an email for international inquires in English relacionesinternacionales@senadi.gob.ec.
IP may be protected differently in Ecuador than in the United States and it is advisable that companies may wish to seek advice from local attorneys or IP consultants who are experts in Ecuadorian law. U.S. firms seeking latest IP policy or requiring IP counselling should contact U.S. Embassy Commercial Specialist Sandra Tinajero at TinajeroSV@state.gov.
U.S. companies should conduct due diligence on potential partners and consider carefully whether to permit a partner to register IP rights on the company’s behalf. Doing so may create a risk that a partner will list itself as the IP owner and fail to transfer the rights should the partnership end. U.S. companies should work with legal counsel familiar with Ecuadorian laws to create a solid contract that includes non-compete clauses, and confidentiality/non-disclosure provisions.
To support efforts to protect IP and stop counterfeiting, it is recommended that U.S. businesses actively participate in industry associations There are a number of these organizations, both in Ecuador and U.S.-based. These include:
- The U.S. Chamber and local American Chambers of Commerce
- National Association of Manufacturers (NAM)
- International Intellectual Property Alliance (IIPA)
- International Trademark Association (INTA)
- The Coalition Against Counterfeiting and Piracy
- International Anti-Counterfeiting Coalition (IACC)
- Pharmaceutical Research and Manufacturers of America (PhRMA)
- Biotechnology Industry Organization (BIO)
In any foreign market, companies should consider several general principles for effective protection of their intellectual property. For background, link to our article on Protecting Intellectual Propertyand Stopfakes.gov for more resources.
For more information on IP in Ecuador, contact:
- Jennifer Chicoski, Regional IP Attaché for the Andean Community and Chile at Jennifer.chicoski@trade.gov
- Stevan Mitchell, Director, Office of Standards and Intellectual Property Rights (OSIP) at Stevan.Mitchell@trade.gov
- To access the Ecuador’s Investment Climate Statement, which includes information on the protection and enforcement of intellectual property rights, visit the U.S. Department of State Investment Climate Statement website.