As a result of the adoption of a comprehensive Criminal Code in Ecuador, counterfeiting and infringement of intellectual property rights have been decriminalized. This new law is in conflict with the TRIPS Agreement, and it leaves trademark, patent and copyright owners without strong legal protection.
However, other means are available to combat the sale of counterfeit goods. These include administrative actions, such as border measures; civil actions; and actions based on the Ecuadorian Constitution, which is hierarchically superior to all national laws, or the Organic Law for the Regulation and Control of Market Power (Antitrust Law).
With this change to the Criminal Code, Ecuador mark holders no longer have the same legal remedies that had existed for years. The government recently announced that it is reviewing the matter, and it presented a proposal to amend the Criminal Code and restore criminal penalties for IP violations in order to comply with the TRIPS Agreement. The proposal is currently under consideration of the National Assembly. Meanwhile, creativity and sound legal advice are a must for brand owners to continue enjoying standards of protection similar to those that existed in the past.
Although every effort has been made to verify the accuracy of items in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest.
© 2014 International Trademark Association