Our firm maintains a long trajectory in the protection and defense of our client’s intellectual property rights. In order to deal with the worsening problem of the importation and exportation of counterfeited goods, we have strengthened our services by creating a specialized department in anti-counterfeiting matters that will concentrate its efforts on different activities to further protect our client´s IP rights, particularly designing campaigns for customs to adopt border measures against infringing merchandise.
Border measures enable customs to intercept and prevent the importation or exportation of infringing goods. These measures can be adopted ex officio or per request of an interested party. Their final objectives are to avoid counterfeited goods to enter the market and to have them destroyed.
The Ecuadorian Customs Agency is called Servicio Nacional de Aduana del Ecuador (SENAE), and its geographical coverage is divided in 12 districts, through which maritime ports, land and air importations and exportations are controlled, in different cities of Ecuador, namely:
- Maritime ports: Esmeraldas, Guayaquil, Machala, Manta, Santa Elena.
- Land: Huaquillas and Loja Macará (Peruvian border), Tulcán (Colombian border).
- Air: Cuenca, Guayaquil, Latacunga, Quito.
Each district is enabled to adopt border measures to prevent the importation or exportation of products that could violate intellectual property rights; however, it is in Guayaquil where the majority of border measures are adopted. In the remaining districts, border measures are adopted as well; however in fewer numbers as there is no adequate training to customs officers.
In order for border measures to be adopted ex officio by the Customs Agency (SENAE) – for border measures to be adopted at request of an interested party, the shipment information should be available, which generally is not the case– it is necessary to: 1) Register the intellectual property rights before the Customs Agency; 2) Register the names of the authorized importers; and 3) To perform training courses to customs officers so that they are able to identify counterfeited goods.
Once border measures are adopted, the Customs Agency reports the case to the President of the Ecuadorian Intellectual Property Institute in order for the border measures to be confirmed or revoked. The Customs Agency reports the case to the IP owner’s attorneys as well –as long as those IP rights are registered before Customs–, so that a petition can be filed to have the measures confirmed or revoked. When border measures are indeed confirmed, the matter continues to a criminal proceeding where ultimately a judge decides the destiny of the counterfeited merchandise and the responsibility of the individuals involved in the investigation.