FAQ
Popular Trademark Questions
The Andean Decision 486 states that all foreign owners of a trademark need a local representative to prosecute a trademark registration.
A trademark can be a distinctive word or a distinctive design.
Ecuador does not allow multiclass applications. It is required to file one application per mark, per class.
Please send a scanned copy of the documents to trademarks@bermeolaw.com then, please submit to our physical address:
Bermeo & Bermeo
World Trade Center Bldg. Tower B 12th fl;.
Av. 12 Octubre y Cordero N24-528
Quito, ECUADOR
Once the IP Office issues the decision of allowance of a trademark, it will be in force for 10 years and it is up to the owner to renew the trademark for another 10 years.
No. An application will need to be submitted in each country.
The Ecuadorian IP Office issues certificates electronically.
A PoA granted by the owner bearing the current address, which needs to be duly legalized with Apostille or alternatively before the Ecuadorian Consulate.
The local law mandates that each change in the ownership shall be recorded before the IP Office.
Yes, the local law mandates that each change in the ownership shall be recorded before the IP Office.
- A PoA granted by the owner bearing its new address, which needs to be duly legalized with Apostille or alternatively before the Ecuadorian Consulate.
- A certificate evidencing the change showing the old and new address duly legalized with Apostille.
- A certificate evidencing the old and the new name of the owner, which must be duly legalized with Apostille or alternatively before the Ecuadorian Consulate.
- A PoA granted by the new owner bearing the current address, which needs to be duly legalized with Apostille or alternatively before the Ecuadorian Consulate.
- A transfer deed signed by both parties and duly legalized with Apostille or alternatively before the Ecuadorian Consulate.
- A PoA granted by the new owner bearing its current address, which needs to be duly legalized with Apostille or alternatively before the Ecuadorian Consulate.
Andean Decision 486 states that there is no loss of protection or basis for lack of use in cases where the use of a trademark in a different form than it was registered if the changes are only in secondary details or minimal features that do not alter the distinctiveness.
Popular Patent Questions
- Novelty.
- Inventive Step.
- Industrial application.
- Clarity of the description and claims
- Uses are not accepted for patentability
- Power of Attorney: Consular/Apostille Legalization and translations are required.
- Assignment documents: Consular/Apostille Legalization and translations are required.
- Abstract, specification figures and claims duly translated.
- Priority documents (PCT/Treaty applications): Consular/Apostille Legalization is not required.
Yes, the specification, claims, abstract, figures, etc., as well as the formal requirements, must be translated into Spanish. These do not need to be certified translations.
Yes, please mail these to:
Bermeo & Bermeo Law Firm
World Trade Center B-12,
Av. 12 de Octubre N24 - 528 y Cordero,
Quito, 170525
ECUADOR
Please send a scanned copy of the documents to trademarks@bermeolaw.com then, please submit to our physical address:
Bermeo & Bermeo
World Trade Center Bldg. Tower B 12th fl;.
Av. 12 Octubre y Cordero N24-528
Quito, ECUADOR
Yes, Patent Cooperation Treaty (PCT): 31-month deadline for entry into the national phase, counted as from the oldest priority.
Paris Convention: 12 months deadline as from the priority’s filing date.
First/current year annuities are to be paid a year in advance; for Priority/PCT applications, back-due annuities are to be paid at filing, counted as from the International Filing Date. Thereafter, yearly maintenance fees must be paid to keep the application/registration alive.
Upon expiration of the 6-month grace period, lack of annuity/maintenance payments results in the automatic and irrevocable lapsing of the application/registration.
Yes, it is possible.
This may result in savings when considering filing and examination fees on additional claims after Claim No. 10, or re-examination fees when considering the amount of pages in the application.
The timeline can vary, but on average, it takes about 4 to 6 years, approx., to obtain a patent in Ecuador.
Patent Prosecution Highway is not available in Ecuador.
Mainly, inventions whose commercial exploitation affects public order or morals; affects the protection of human or animal health or life, or for the preservation of plants or the environment (not solely because a legal or administrative provision that prohibits or regulates such exploitation exists).
Plants, animals and essentially biological processes for production of plants or animals except non-biological or microbiological processes; and therapeutic or surgical methods for human or animal treatment, as well as diagnostic methods applied to human beings or to animals; are also not patentable. Decision 486’s Art. 20.
As per Ecuador’s IP Law, Art. 273, the following are not patentable: product of polymorphs, metabolites, pure forms, sizes for particles and isomers which have not been investigated in Ecuador; nor the product of the genetic resources containing the biological diversity and the agro-diversity which have not been investigated in Ecuador.
Towards numeral 1 above, these, among others, are not patentable:
a. Cloning procedures of human beings;
b. The human body and its genetics;
c. The use of human embryos for industrial or commercial purposes; and,
d. Procedures for the modification of the genetic identity of animals when these cause suffering without any substantial medical benefit being obtained for humans or the animals.
And finally, as per Art. 267, traditional knowledge is not considered protectable material.
The following shall not be considered inventions as per Decision 486’s Art. 15:
a) discoveries, scientific theories, and mathematical methods;
b) the whole or part of live beings as found in nature, natural biological processes, biological material existing in nature, or such material that can be isolated, including genoma or germoplasma of any natural live being;
c) literary and artistic works or any other protected by copyright;
d) plans, rules and methods for exercising intellectual activities, games or economic-commercial activities;
e) computer software, as such; and
f) forms/manners of presenting information.
The following shall not be considered inventions as per Ecuador’s IP Law – EOCSEK, Article 268:
(…) 3. The new form of a substance, including salts, esters, ethers, complexes, combinations or other derivatives.
4. Polymorphs, metabolites, pure forms, particle sizes and isomers;
5. Uses and any new property or new use of a known substance or the utilization of a procedure or a machine or apparatus.
6. Genetic resources containing the biological diversity and the agro-diversity. (…)
FAQ
Popular Company Incorporations Questions
Ecuador incorporations are mostly limited to LLC’s (Compañías de Responsabilidad Limitada) and Corporations (Sociedades Anónimas & Sociedades Anónimas Simplificadas).
Main considerations when choosing a vehicle include the importance of the company’s share/stockholders and the desire to be listed in the Stock Exchanges.
Local Subsidiary incorporations are also available and are mainly subject to the same regulatory and tax requirements; benefits of this vehicle option are usually seen in the matrix’s jurisdiction.
Also available are mixed private–government entities (APP – Alianza Público Privadas)
Upon receiving all documents with their required legalizations (including translated and/or Apostilled document requirements for companies acting as share/stockholders), 7 days.
Yes, companies must yearly file complete reports to the Superintendence of Companies, and the IRS, on their ownership structure, and the administrators of any vehicles in the ownership chain, up to the ultimate beneficiary owner.
Severe penalties and tax implications derive from non-compliance.
These differ depending on the incorporated vehicle:
- LLC: USD $400
- SA: USD $800
- SAS:USD $1,000
Please note that NewCo’s Accountant has to file before the Authorities the Initial Balance reflecting the payment of the Paid-In-Capital.
Yes, NewCo’s are required to open a bank account. Regardless of the incorporation vehicle and their required/agreed paid-in-capital.
Most banks require a USD $1,000 minimum deposit for corporate accounts.
Bermeo provides bank account opening services.
We have different service levels, however, all incorporations include preparing basic Articles of incorporation (which in Ecuador, include the Bylaws), filing these before the Superintendence of Companies and/or the Mercantile Registry, and obtaining the IRS’ granted Tax ID for the NewCo.
While there is no such figure, all companies are required to have a legal representative in Ecuador. Bermeo can assist in obtaining a visa for your officers.
Also, foreign companies recorded as stock/shareholders of an Ecuadorian vehicle are required to have and file a PoA in favor of an Ecuadorian resident, with powers to file and answer suits. Bermeo provides this service as well.
Yes, for company formation purposes.
For operating companies, we require the signing of Professional Services Contracts, Issuance of Indemnity Letters, and hiring D&O Insurance, having both Bermeo and the representative as primary beneficiaries thereto.
Yes, Bermeo can provide an address for company formation purposes only, not for operating companies, as provided premises could be eventually seized upon non-compliance with certain local regulations.
Yes, we provide accounting and Payroll Services. Bookkeeping Services are provided for companies with up to 75 transactions per month.
Clients must note that upon completing the incorporation process, the accountant must file before the Authorities the initial balance, with the agreed Paid-In-Capital.
Not all companies need this; companies with certain amounts of assets and/or revenue and/or operating in some particular industries are required to hire external audit services and file their reports before local authorities.
Companies are subject to a 22% income tax on their sales globally. This is in addition to the 15% dividends that must be paid to the company’s labor force.
Yes, we have a qualified team of professionals who provide compliance, regulatory and general legal services, including contract drafting and negotiations with vendors, suppliers, clients, etc.; as well as commercial and labor litigation (including mediations and arbitration procedures).
Popular Labor Regulations Questions
Yes, professional services contracts are allowed; however, regardless of any documents or contracts signed among the parties, Ecuadorian judges will find a labor relationship exists, with all its legal implications (and automatic violations), whenever a subordination relationship is present.
Indications of such subordination, and thus, a labor relationship, include:
- Decision independence, does the person follow orders?
- Where are the services provided (in whose premises)?
- Is a schedule set (by whom) and followed?
- Who owns the tools and implements to carry out said activities?
No. Third-party hiring is strictly forbidden and penalized by Constitutional Mandate No. 8.
However, complementary services are allowed, subject to certain restrictions and formal requirements, for the following major activities:
- Security Services
- Cleaning Services
- Technology Services
Ecuador applies the indefinite contract as the predominant contract type; it can be full-time (8 hours/day), or part-time (up to 6 hours/day), 5 days a week. Two consecutive days of rest are to be granted.
Indefinite contracts can be terminated:
- By mutual agreement of the parties.
- By the employee, with a head notice of at least 15 days.
Most employer terminations will be deemed wrongful terminations in a court of law.
Yes, other contract types exist, such as an internship contract (strictly, not a labor contract), entrepreneur contracts, contracts for government-deemed strategic industries, etc.; however, a cautious review of their specific conditions is required to avoid misuse and penalties.
Yes, overtime is allowed with a 50% or 100% surcharge on the hourly rate, depending on the time and day these are carried out. There is a limit on how many hours can be requested or agreed upon.
Yes, a 90-day trial period may be agreed to in any contracts with new personnel being hired, in which either party may freely terminate the relationship without major economic consequences. If the person is shifting from one contract type to another, even if not a labor contract (such as an internship contract), trial periods can no longer be signed.
Yes, employers may fire an employee at any time. Most terminations are deemed wrongful terminations, for which the following –additional - compensation applies from day one (or 91 if a trial period was agreed to):
- One additional monthly wage for each year of work, with a minimum of three years.
Applicable January 1st 2024, Ecuador has set the minimum wage at $460/month for the general worker (different worker categories have different minimum wages).
Wages are due at least every month, but some parties agree to weekly or fortnight payments.
14 wages are provided for in the year, with an additional wage (1/12 of the yearly remuneration) paid by December 24 of each year; and a minimum wage to be paid by March 15 on the coastal region (i.e. Guayaquil) and August 1st in the Sierra (Quito), and Amazon regions.
Employees can choose, in January of each year, if they want to receive these over wages on said dates or prorated every month.
Yes. All labor relationships are subject to a Social Security contribution to be paid over any and all components of the employee’s remuneration (this includes fixed and contingent wages, bonuses, transportation, etc.). For full-time, indefinite contracts, as follows:
- Employee: 9.45%
- Employer: 11.15%
Yes, employees have the right to 15 consecutive days of paid vacations (to be enjoyed after the first year of work), with one day increasing every year (up to 30) from their 15th year of work.
Yes, Ecuadorian laws provide that employees, including complementary services personnel, are entitled to 15% of the company’s pre-tax profits, due in April of the following year.
Even if a company has no employees, some Authorities have stated that said funds need to be deposited in a government account.
No, labor relationship conflicts can only be mediated before a Government Approved Mediation Center, or tried before a labor judge.
Competent judges are:
- If against the employee, the employee’s domicile judge.
- If against the employer, or any of its representatives: wherever the company has a legal establishment.
More Questions? Contact Us