The "Republic of the Equator" was one of three countries that
emerged from the collapse of Gran Colombia in 1830 (the others are
Colombia and Venezuela). Between 1904 and 1942, Ecuador lost territories
in a series of conflicts with its neighbors. A border war with
Peru that flared in 1995 was resolved in 1999. Although Ecuador
marked 25 years of civilian governance in 2004, the period has been
marked by political turnover. Seven presidents have governed Ecuador
Who May Apply?
Any physical person or juridical person can file an application for
What Can Be Registered?
Any symbol that is capable of distinguishing goods or services and
is capable of graphic representation is eligible for registration.
The following signs, among others, can constitute a trademark:
(a) word or combination of words;
(b) pictures, figures, symbols, graphic elements, logotypes,
monograms, portraits, labels, and emblems;
(c) sounds and smells;
(d) letters and numbers;
(e) a color demarcated to give it a specific shape, or combination
(f) the shape of a product, its packaging, or its wrappings; and
(g) any combination of the signs or means indicated in the items
What Cannot Be Registered?
The following are not eligible for registration:
(a) marks failing to constitute a trademark according to the legal
definition (that is, capable of distinguishing goods andlor services
on the market and also capable of graphic representation);
(b) marks that are not distinctive;
(c) marks consisting solely of the ordinary shape of goods or
packaging, or of shapes or characteristics dictated by the nature or
particular function of the product or service;
(d) marks consisting exclusively of shapes or other elements that
constitute functional or technical advantages to the product or services
to which they are applied;
(e) marks that serve in commerce to designate or describe the
quality, quantity, purpose, value, geographical origin, or time of
production, or that impart other details, characteristics, or information,
including expressions of praise for goods or services;
(f) marks consisting exclusively of a sign or statement that is the
common or technical name of the product or service concerned;
(g) marks consisting solely of or that have become a sign or statement
that is the common or usual designation for the goods or services
(h) marks consisting of a color in isolation, without any demarcation
to give it a specific shape;
(i) marks liable to create confusion in business circles or the public,
in particular as to geographical origin, nature, manufacturing
methods, characteristics, or qualities of the goods or services
concerned, or their suitability for use;
(j) marks reproducing, imitating, or containing a protected indication
of origin; (k) marks containing a protected appellation of origin for wines
and spirit beverages;
(1) marks consisting of a national or foreign geographical reference
that is liable to create confusion in its application , or services; to products
(m) marks reproducing or imitating, without permission from the
competent authorities, heraldic elements, such as coats of arms,
flags, emblems, and official marks or stamps used for the purposes
of the government control or initials or designations of any
(n) marks reproducing or imitating marks denoting conformity
with technical standards;
(0) marks reproducing or imitating, or including the indication of
a protected plan species, for goods or services relating to that species
or if its use is likely to cause confusion or a mistaken association
with that plant species;
(p) marks contrary to the law, morality, public order, or good
(q) marks that infringe the rights of third parties that have a
registered trademark or a prior application for a trademark that is
likely to lead to confusion or false association;
(r) marks consisting of a sign that may violate the intellectual
property right or copyright of a third party;
(s) marks consisting of a sign that is identical or similar to a
protected trade name or advertising slogan and that is likely to lead
(t) marks consisting of a sign that is capable of affecting the
identity or prestige of natural or juridical persons;
(u) marks consisting of the name of indigenous, African American,
or local communities or that constitute expressions of their
culture or practice; and
(v) marks consisting of a total or partial reproduction, imitation,
translation, transliteration, or transcription of a well-known sign
belonging to a third party without regard to the type of product or
services to which it shall be applied for, the use of which would lead
to a likelihood of confusion or mistaken association with that party;
taking unfair advantage of the prestige of the sign; or weakening its
distinctive force or its use for commercial or advertising purposes.
An owner of a well-known mark may prevent the use of a similar
mark, even if it is used on different goods or services. This provision
applies only to protect well-known marks.
Third parties are not allowed to use marks similar to those
registered for the same goods or services. Third parties may use and
even register a mark similar to an unregistered mark to protect other
goods or services, except when the registered mark is a well-known
mark. According to the legislation, use of a mark does not grant any
right to the user. In order to obtain the exclusive rights, one must register
Third parties may use, without the consent of the owner of the
registered mark, their own names, domiciles, or pseudonyms, a
geographical name, or any other specific designation relating to the
type, quality, quantity, purpose, value, place of origin, or time of production
of their goods or rendering of their services or other
characteristics thereof, provided that it is done in good faith and does
not constitute use of a mark, and provided that such use is confined to
the purposes of identification or information and is not likely to
mislead the public as to the origin of the goods or services.
Third parties are also able to use a mark to publicize, including the use of comparative advertising, to offer for sale or to advertise the existence
or availability of lawfully marked goods or services, or to
advertise the compatibility or suitability of spare parts or accessories
that may be used with goods bearing the registered mark, provided
that such use is made in good faith, is confined to the purpose of
informing the public, and is not likely to mislead or cause confusion
as to the corporate'origin of goods or services concerned.
The documents required for applications for registration are:
(1) petition or application that must include the following
(a) trademark or service mark to be registered;
(b) name and address of applicant;
(c) nationality of the applicant, and if it is a legal entity, place
(d) statement of the trademark to be registered, where such
trademark is denominative or device mark;
(e) list of the specific goods or services to be protected and
international class; and
(f) signature of the applicant or hisher grantee and of a lawyer;
(2) if the applicant does not live in Ecuador, a Power of Attorney
duly legalized in the Consulate of Ecuador, or by Apostille;
(3) receipt of the official fee which is $54 in U.S. dollars; and
(4) when claiming priority, a certified copy of the first application
An electrotype is not required. Prints or copies of the mark are allowed.
Evaluation & Review
The competent national office examines the application for compliance
with the formal requirements within 15 days of the filing date of
If the application is not acceptable as to form, the national office informs the applicant so that he may meet the said requirements
within a period of 60 days following the date of notification.
If, on the expiry of the period mentioned, the applicant has not
complied with the requirements stated, the application is considered
abandoned, and its place in the order of precedence is lost.
If the application for registration meets the requirements for form,
the national office orders publication on the Official Gazette. Publication
on the Intellectual Property Gazette is then generally begun
within the next 30 days.
Starting from the publication date, third parties have a 30-workingday
term to file oppositions. However, if no oppositions are filed, the
office must undertake an examination for registrability, thereafter
granting or denying registration based on the results of the examination.
A registration is granted for 10 years and may be renewed for successive
Registration must be renewed within six months prior to expiry, or
during the grace period of six months following the expiration date of
registration. In order to renew the registration, the owner must file a renewal
application. Renewal does not require proof of trademark use and is
granted automatically on the same terms as the original registration.
The renewal is granted for 10 years. If a trademark owner fails to
renew hislher registration, the trademark is deemed lapsed or abandoned.
The use requirements are satisfied when the goods or services that
the mark distinguishes have been placed, or are available, on the
market under the mark, in the normally appropriate quantity and
A mark is also considered used when it exclusively distinguishes
goods that are exported from any of the member countries of the
Andean Community. A mark used by a licensee or any third party authorized
by the mark owner also constitutes use if the license andlor
authorization for such use has been registered at the Trademark Office.
The use on a different product or service does not count as use.
Use of a mark in a different form from the original registration may
constitute use only to the extent that there is no material deviation in
details or elements so as to alter its distinctive character.
If a mark owner stops its use for three consecutive years, a third
party may file a cancellation action for nonuse.
There is no national legislation providing for rights in domain
names or their protection.
The trademark law provides protection only to well-known distinctive
marks that appear in relation to domain names. Therefore, if a
mark has been improperly registered as a domain name in a member
country of the Andean Community (Ecuador, Peru, Bolivia, Venezuela,
and Colombia), as being part of a domain name or electronic mail address
by an unauthorized third party, the competent national authority
will, at the request of the owner or legitimate holder of the wellknown
mark, order the cancellation or amendment of the registration
of the domain name or electronic mail address in so far as the use of
that name or address may be liable to confuse consumers.
Trademark 'owners may file civil, administrative, andlor criminal
actions as follows.
"Tutela Administrativa": This procedure is done before the Intellectual
Property Institute, requesting from the authority the inspection
and seizure of the products or any other measure to stop the infringement.
A hearing is held whereby the parties may sign a
settlement agreement that may include indemnification for the
trademark owner. If there is no such agreement, the authority will issue
a resolution. If the resolution indicates a determination that infringement
occurred, the authority will establish a fine to be paid by
the infringer. This resolution may be appealed by the alleged infringer.
Unfair competition is considered illicit or unlawful, and according to the Industrial Property Protection Paris Agreement signed in March
1883 and to which Ecuador is a signatory, "[tlhe Union countries are
obligated to ensure nationals of the Union countries an efficient protection
against unfair competition." This agreement allocates to Ecuador
the obligation to protect the affected mark owner from "every act of
unfair competition contrary to the honest uses on industrial or commercial
In accordance with this rule, Article 284 of the current Intellectual
Property Law considers as unfair competition "every fact, act or
practice contrary to the honest uses or customs in the economic activities
ties de~elopment."T~h is rule defines honest (or good-faith) uses as
those that are consistent with "the criteria of the national commerce."
Article 285 of the same Law specifically identifies certain forms of
unfair competition, including acts capable of creating confusion as to
the source establishment, the products or services, or the commercial
or industrial activity of the competitor; and any act capable of diluting
the intangible value or reputation of the company; and, in general,
any commercial act considered dishonest.
Decision 486 of the Andean Community and its Article 258 parallel
the concepts pertaining to unfair competition in the Paris Agreement.
According to this, the unfair competition is regulated in our country
by two International Treaties and by the Intellectual Property Law.
This decision mentioned considers as unfair competition, "Any act a)
capable of [creating] confusion, [in] any way, in respect to the
establishment, the products or the competitor industrial or commercial
activity, the unreal confirmations [untrue assertions], in the commerce
exercise, capable of discrediting the establishment, products or
the competitor, or industrial or commercial activity; c) The indications
or confirmations that, in the exercise of commerce could induct the
public to make a mistake regarding the nature, manufacture,
characteristics, use, aptitude or the quantity of the product^."^
This authority enables aggrieved parties to initiate legal actions to
obtain orders from a civil judge to suspend immediately all kinds of
publicity, act, or dishonest practice that can cause economic or commercial
damage to the company; and to obtain economic reimbursement
or damages resulting from the acts of unfair competition.
Criminal penalties to punish acts of unfair competition as criminal infringements are also included in the Intellectual Property Law terms
and the Criminal Code and Customs Legislation.
If the infringer is importing the product which is distinguished by a
mark, it is possible to obtain border control measures to avoid the
entry of the infringing product to the national market.