Decision 486 in force since December 1, 2000 is the main law regulating Patents and Trademarks in Ecuador and the other Andean Community Nations namely, Venezuela, Colombia, Perú and Bolivia.

A summary of some of its most important points follows:

PATENTS

Patents are granted for a period of 20 years from the application's filing date.

The following are not patentable:

1. Inventions contrary to public policy, morals or good custom.
2. Inventions evidently against the health or life of people or animals, the conservation of plants or the environment.
3. Plants and animals and the essentially biological processes to obtain them. However, microorganisms are as yet patentable.
4. Therapeutic, surgical and diagnostic methods for human or animals.

The following are not considered inventions:

1. Discoveries, scientific theories and mathematical methods.
2. Living organisms or parts thereof as found in nature, natural biological processes, biological material existing in nature or that which may be isolated, including any living organism's genome or germoplasm.
3. Literary or artistic works or any other copyright protected work.
4. Plans, rules and methods for games, economic or business activities.
5. Computer programs as such; and,
6. The forms to present information.

Ecuador has been a member of the Patent Cooperation Treaty (PCT) since May 7, 2001.

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TOPOGRAPHIES AND INTEGRATED CIRCUITS

Definitions

a. Integrated circuit: the final or intermediate form of a product whose elements at least one of which is active and any or all of its interconnections are part of the body or of the surface of a piece of material, and designed to perform an electronic function.

b. Topography: any tridimentional layout of the elements, at least one of which is active and interconnections of an integrated circuit as well as such tridimentional layout for an integrated circuit to be manufactured.

· A topography's application must be filed within two years of its commercial use.

· A commercially exploited topography's application must be filed within 15 years from the last day of the year of the topography's creation.

· Registration grants right of exclusive use for 10 years from the former of the two dates:

a. the last day of the year the topography was first commercially exploited, or

b. the application's filing date in any Member Country.

· A registered topography's protection will expire in any case 15 years from the last day of the year of its creation.

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UTILITY MODELS

Utility model registration is granted to any new form, configuration or arrangement of elements of any object or its parts permitting a better or different operation, utilization or fabrication or allowing any new utility, advantage or technical effect.

Registration term is for 10 years from the filing date.

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INDUSTRIAL DESIGNS

An Industrial Design is defined as a product's particular appearance resulting from any assembly of lines or combination of colors, or from any bidimentional or tridimentional external form, line, contour, configuration, texture or material, without changing the product's purpose.

Registration grants right of exclusive use for 10 years from the filing date.

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TRADEMARKS

A mark can be any sign capable of distinguishing products or services in the marketplace. Signs allowing graphical representation can be registered as trademarks.

The following signs, among others, can be registered as trademarks:

1. words or any combination thereof;
2. images, figures, symbols, graphics, logotypes, monograms, portraits, labels, emblems and coats-of-arms;
3. sounds and smells;
4. letters and numbers;
5. a color limited by a shape, or a color combination;
6. the product's shape, its container or packaging;
7. any combination of the aforementioned signs or means.

The following signs cannot be registered as trademarks:

1. Do not constitute a trademark according to the preceding definition;

2. Signs lacking distinctiveness;

3. Consist exclusively of usual forms of products or their containers or of shapes or characteristics set by the nature or the function of such products or services;

4. Consist exclusively of forms or other elements that give a functional or technical advantage to the product or service they apply to;

5. Consist exclusively of a sign or indication that may serve in the marketplace to describe the quality, amount, use, price, geographical origin, production date or other data, features or information of the products or services for which such sign or indication will be used, including commendatory expressions of such products or services;

6. Consist exclusively of a sign or indication constituting the product or service's generic or technical name;

7. Consist exclusively of the current or usual designation for the products or services concerned in the country's common language or usage;

8. Consist of a color in itself, without it being limited by a specific shape;

9. Deceive the commercial community or the public, particularly with regard to the geographical origin, nature, manufacture, characteristics, qualities or suitability for use of the products or services concerned;

10. Reproduce, copy or include a protected appellation of origin for the same products, or for different products when their use might imply confusion or association with such appellation of origin or taking unfair advantage of its notoriousness;

11. Include a protected appellation of origin for wines or sparkling wines;

12. Consist of a foreign or national geographical indication which might lead to confusion wish respect to the products or services they apply to;

13. Reproduce or imitate, without permit of the competent authority a nation's coats-of- arms, flags, emblems, control and guaranty official signs and stamps and any heraldic imitation as well as any international organization's coats-of-arms, flags and other emblems, abbreviations or denominations;

14. Reproduce or imitate signs in conformity with technical standards, except if their registration is requested by the competent national organization in charge of the standards and qualities in the Member Countries;

15. Reproduce imitate or contain the denomination of a protected plant variety; or

16. Are contrary to law, morals, public policy or good custom.

Signs whose use in trade unduly affects third party's rights cannot be registered as trademarks particularly when:

1. Are identical or similar to a trademark previously filed for registration or registered by a third party for the same products or services, or for products or services whose trademark use may cause confusion or association;

2. Are identical or similar to a protected tradename , placard or insignia as long as their use may give rise to a risk of confusion or association;

3. Are identical or similar to a requested or protected trade slogan, as long as their use may give rise to a risk of confusion or association;

4. Are identical or similar to a third party's distinctive sign as long as their use may give rise to a risk of confusion or association, whenever the applicant has been an agent, distributor or a person duly authorized by the owner of the protected sign in the Member Country or overseas;

5. Consist of a sign affecting a juristic or natural person's identity or prestige, particularly when referring to the name, surname, signature, title, hypocorism, pseudonym, image portrait or caricature of a person other than the applicant or identified by the pertinent public sector as such unless there is such person's authorization;

6. Consist of a sign which violates a third person's intellectual property right unless there is such person's consent;

7. Consist of an indigenous, afro-american or local communities' name, or the denominations, words, letters, characters or signs used to distinguish their products, services or the way to process them or that constitute the expression of the community's culture or customs unless there is such community's consent; and,

8. Consist of a reproduction, imitation, translation, transliteration or transcription whether total or partial of a famous sign belonging to a third party regardless of the products or services for which the sign is being used whenever its use may give rise to a risk of confusion or association with such third party or its products or services, or takes an unfair advantage of the sign's prestige, or produces the dilution of the sign's distinctiveness or of its trade or advertising value.

· An application for a trademark filed in a member country may be subject to an opposition procedure originated in any other member country.

· The Patent and Trademark Office will reject the oppositions in the following instances:

a. When the opposition lacks essential information about the plaintiff and/or the defendant.
b. When the opposition has been untimely filed.
c. When the corresponding administrative filing fees have not been paid.

· When an identical or similar trademark designed to protect the same products or services has been registered in at least two member countries by different owners, the products or services identified by the trademark cannot be traded between the countries where their registration exists unless there is an agreement between the trademark owners.

· A product or service whose mark has not been used in the importing country cannot be barred from importation unless the trademark owner justifies its not being used.

· The Patent and Trademark Office will either cancel the trademark registration or limit the products covered by the trademark when the mark has become a common or generic term for the products identified by the trademark.

· The Patent and Trademark Office will cancel the trademark registration when it has not been used during three consecutive years before the cancellation action filing.

· Registration grants right of exclusive use for 10 years from the registration date.

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GEOGRAPHICAL INDICATIONS

A Geographical Indication is defined as the denomination of a country, region, place or a definite geographical area which serves to designate a product coming from such locations whose quality, reputation or other characteristics are exclusively or essentially derived from the geographical medium in which it is produced including natural and human elements.

Registration grants right of exclusive use for 10 years.

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FAMOUS DISTINCTIVE SIGNS

Famous distinctive signs are defined as those signs identified as such by the pertinent sector in any Member Country.

A non-exhaustive list of guidelines to determine whether a distinctive sign is famous or not has been established:

1. The extent to which the distinctive sign is known among members of the pertinent sector of any Member Country.
2. The duration, extent and geographical extension of its use within or outside of any Member Country.
3. The duration, extent and geographical extension of its promotion within or outside of any Member Country.
4. The investment value of its promotion.
5. The sign's holder sales and revenues.
6. The sign's inherent or acquired distinctiveness.
7. The sign's book value.
8. The sign's demand for franchising or licensing agreements.
9. The importance of manufacture, purchase or storage activities by the sign's holder.
10. International trade factors.
11. The existence and duration of the distinctive sign's registration or application.

· The Patent and Trademark Office shall cancel or modify a famous distinctive sign's undue registration in a Member Country as part of a domain name or an email address as long as the distinctive sign's use causes confusion in relation to identical or similar business places, activities, products or services or, in relation to different business places, activities, products or services, causes confusion or association or dilution of the sign's distinctiveness or takes undue advantage of the sign's prestige.

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TRADE SECRETS

· The legitimate owner of a Trade Secret is protected against its disclosure, acquisition or use by a third party if:

a. The secret information is neither generally known nor easily accessible to people usually familiar with such information.
b. The information must have commercial value due to its confidentiality.
c. The rightful owner must have adopted reasonable measures to maintain the information confidential.

· The information made public due to an injunction or law it is not considered a Trade Secret.

· The information made available to any authority by its legitimate owner to obtain licenses, permits, authorizations, registrations, or any other grant of authority it is not considered known by the general public or given out by law.

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PLANT VARIETIES (PLANT PATENTS)

Resolution 345 in force in Ecuador and the other Andean Community member countries since October 29, 1993 is the principal law regulating plant varieties through the granting of an Obtainer's Certificate.

In order to procure an Obtainer's Certificate a plant variety must be new, homogeneous, distinguishable, stable and must have a generic name. Its novelty is lost when the product has been marketed in any Andean Community country at least 1 year before the application's filing date.

There is a Protected Plant Variety National Registry in each member country. Registration takes place in this National Registry.

To each application for registration must be annexed a detailed description of the plant variety obtainment process. The National Registry may also require either the filing of a plant variety sample or the proof that it has been filed in another member country.

An application filed in a member country or, subject to reciprocity, filed in a non-member country grants the applicant a 12 month priority right the request the plant variety protection in any other member country.

The Obtainer's Certificate is granted for 20 to 25 years for grapevines, forest trees and fruit trees and for 15 to 20 years for other species from its concession date.

An Obtainer's Certificate owner may prevent a third party from producing, reproducing, multiplying, spreading, selling, importing, using commercially its plant variety or an essentially derived one.

An Obtainer's Certificate owner may grant licenses for the exploitation of the plant variety.

The competent authority may impose duties in order to keep the Certificate in force.

According to the Resolution's temporary rules and old plant variety may be registered if:

a. It is filed within a year from the plant variety National Registry opening; and,

b. The plant variety has been registered in another member country or, subject to reciprocity, in any other country.