Ecuador has gone through major changes in its legislation in connection to IP Rights. Ecuador former Government took a different approach in the way IP rights were protected and repealed IP crimes therefore “counterfeit and piracy” were not considered a crime. This decision was later reviewed, and basic IP criminal protection is now in force. On December 2016, IP legislation changed to the current IP law identified as Organic Code for the Social Economy of Knowledge.
Servicio Nacional de Derechos Intelectuales – SENADI (Ecuadorian PTO and formerly known as IEPI) has worked close to the public, sharing projects and providing support to prepare bylaws and regulations.
President Moreno government is open to conversation and have made a few relevant policies changes. A lot of work is still ahead (such as modification on the current IP Crime in Congress), but important changes can happen on a short period base on a political decision.
At this time in Ecuador, “ex officio” border actions are not in force. According to current legislation, IP owners must provide authorities with “sufficient” information on the import, the infraction and the infringer to proceed with a border action before Customs. Such requisite for protection has become an impediment.
A bylaw (regulation) resulted as a collaborative work between SENADI, attorneys, IP owners and lawmakers could become the first step into the return of ex officio border action in Ecuador. The bylaw is on President Lenin Moreno’s desk for approval and signature.
In the long term, changes in Ecuador’s IP criminal legislation should be a highly important issue on the agenda. Current legislation allows criminal enforcement actions only under determine circumstances: a) Only Trademarks and Copyrights can be protected in a criminal legal action – no patents; b) Criminal actions proceed against commercialization and productions of illegal goods bearing trademarks or copyrights – no transport nor warehousing.
There is also a legal requirement of US$56.000 dollars in infringement merchandise to file charges against an IPR infringer. If the value of the seized goods is under US$56.000 infringer does not have a criminal responsibility in the crime investigated by the Prosecutor’s Office, however, if the seized goods were proven illegal, then the goods can be destroyed. Trademark and Copyrights owners must collaborate and cooperate with Prosecutors Office in every single instance of the criminal investigation.
A minor administrative change within Ecuador Prosecutors Office (no law modifications are required) can have a big impact on how IP crimes are being investigated. Before 2014 the Prosecutors Office Unit in charge of IP investigations was the FEDOTI unit (Fiscalia Especializada en Delincuencia Organizada Transnacional e Internacional – FEDOTI), one of the best investigations unit in Ecuador’s Prosecutors Office. In 2015, with the new IP crime, Ecuadorian Prosecutor’s Office appointed the “EASY SOLUTIONS” (Soluciones Rapidas) unit from Prosecutors Office to handle IP investigation cases, which translated into no investigation at all.
Documents have been elaborated and meetings have taken place during the last few months to allocate IPR investigations back to FEDOTI unit in the Ecuadorian Prosecutors Office.
Administrative enforcement actions was planned as the natural legal process for IPR protection, nevertheless, SENADI has no possibility for a reaction against the infringements in Ecuador’s market place. Governmental policies for the reduction of personnel, lack of economic resources and wrongful interpretations of the law by Judges, have weakened the power of SENADI to provide effective protection to IP owners.SENADI has a team of attorneys and administrative personnel involved in IPR enforcement actions only, should be strengthened, trained and increased. Ecuador does not have specialized judges nor a specialized Court to handle IPR infringement actions cases, however, including IP within the Ecuadorian Judicial “Training Program from Judges and Judicial Personnel” of the Consejo de la Judicatura, could become the first step into any plan.