It was not until recently that the IP authority could initiate ex officio its first investigations into local informal businesses dedicated to the piracy of musical and audiovisual works. Thus far, they have initiated actions against 26 stores dedicated to the sale of CDs and DVDs which lack the respective licences, and have fined each store approximately $1.8 million. If such fines are not paid, criminal action will be taken.
The Intellectual Property Institute recently granted the first compulsory licence for a pharmaceutical patent. Such resolution was granted as a direct result of Presidential Decree 118 and the subsequent Instruction for Granting Compulsory Licenses regarding Pharmaceutical Patents, which declared access to medicines a public interest subject.
The Intellectual Property Institute has increased the official fees it charges for its services. There appears to be no legal basis for certain of the fees, and many of the fees seem to be disproportionate. The changes have been questioned by many IP lawyers and some of the issues that have arisen are already the subject of discussions with local authorities.
President Rafael Correa has issued Decree 118, which declares that it is in the public interest to have access to medicines used for the treatment of illnesses affecting the Ecuadorian people. In order to implement the decree, the Intellectual Property Institute, in accordance with the Intellectual Property Law, has issued the Instruction on the Granting of Compulsory Licences for Patented Drugs.
Recently the courts in South America have dealt with cases involving the registration of bottle shapes as trademarks. A key issue in these cases was whether the shape of a bottle itself, without any labels or other distinctive features, could be a source identifier. Among other things, this update considers the application of the Seabrook test to the shape of a beer bottle registered as a trademark in Ecuador.
The Andean opposition has been the subject of different interpretations, which the Andean Court of Justice has tried to reconcile. This update reviews certain decisions of the Andean court and the Ecuadorian Institute of Intellectual Property, showing how the jurisprudence of the Andean court has delimited the scope of the Andean opposition and influenced the resolutions issued by the Ecuadorian institute.
The Andean Community has taken steps towards the implementation of a common trademark regime by creating, among other things, the Andean opposition. Trademark holders in a member country can now oppose registration applications in other member countries. For this common regime to become a reality, it is still necessary to interconnect the computer systems of the IP offices of all member countries.
Recent IP cases in Ecuador have confused the concept of Andean opposition with that of the right of priority. However, there are significant differences between the two concepts. Among other things, the authorities must suspend the trademark registration procedure when an Andean opposition is filed, which is not the case when a priority right is invoked.
The Ecuadorian Institute of Intellectual Property has denied three applications by companies seeking trade dress protection for the shape of bottles used to sell their products, finding that the shapes lacked distinctiveness. These could be landmark cases in Ecuadorian IP law, as they clearly establish the distinctiveness requirement for trade dress protection.
An Andean Community decision listing the elements that national authorities should take into consideration when determining whether a trademark is well known in the Andean Community does not include a declaration or certification by the competent authority of the country of registration. Nevertheless, the Intellectual Property Committee recently denied protection to some obviously well-known foreign marks.
Including: Patents; Trademarks; Copyrights; Other IP Rights.
A recent Andean Community decision introduces the concept of partial cancellation of trademark registration. However, the Ecuadorian Intellectual Property Committee has ruled that as the decision does not have retroactive effect, the three-year period of non-use which claimants must prove to request partial cancellation only begins to run from the date on which the decision took effect.
Following the loss of its second use patent for Viagra, Pfizer has launched an aggressive campaign to protect its remaining trademark rights through legal actions alleging unfair competition and trademark infringement. In one such case a civil court ordered the withdrawal of a generic drug from the market under the provisions of the Intellectual Property Law which govern unfair competition.
The Ecuadorian Institute of Intellectual Property has started a training programme in cooperation with the Ecuadorian media which aims to combat the growing copyright piracy problem. It is estimated that in 2002 software piracy alone cost Ecuador US$8.5 million in foreign investment. The programme aims to increase awareness of the importance of respecting copyright.
The general secretary of the Andean Community has held that Ecuador breached Andean Community law by granting a second use patent to Pfizer for its Viagra drug. The Andean Community Supreme Court had decided that the Common Regulation for Industrial Property prohibits such patents. All Andean countries must now declare the patent void or potentially face penalties.
This update examines the ways in which trademarks can be licensed and the conditions that surround such licences.
This update outlines the ways in which Ecuador has empowered the national Intellectual Property Institute to assert administrative tutorship over intellectual property and how the institute can prevent trademark infringement.
In line with Andean Community law, Ecuador’s Intellectual Property Law provides for the granting of mandatory patent licences when market demand for a patented product is not being satisfied. The conditions for this special licence are examined in this update.
The Andean Community has adopted new legislation for the protection of intellectual property that fulfils the member countries' commitments under international treaties, including the Paris Convention. The new law took effect on December 1 2000.
The unauthorized use of any type of intellectual property identical or similar to registered intellectual property is illegal and constitutes unfair competition. Not only does such use cause economic damage to the legitimate owner, but it can also create confusion among consumers. Both internal laws and international conventions are invoked to combat unauthorized use.