Industrial design application
Requirements for Eligibility
An industrial design protects the intellectual property rights of the appearance of a product resulting from any meeting of lines or combination of colors, or any two or three-dimensional external shape such as line, contour, configuration, texture or material. These design elements are ornamental only – they cannot change the function or purpose of the product protected by the industrial design.
For an industrial design to be registrable, it must be a new, original design. It needs to have more than minor or secondary differences with respect to previous designs.
Learn more about design patent protection
There are many different types of designs that are NOT registrable, including:
- Designs that infringe morality and public order
- Designs that have a technical function with no ornamental aspects
- Designs whose figures or characters constitute the expression of a culture or of an indigenous, Afro-American or local community’s knowledge
- Designs that consist of a form for which the exact reproduction is necessary to allow a mechanical assembly or connection with another product; however, this last prohibition does not apply to those products in which the design is in a form intended to allow the assembly or connection within a modular system.
The order and classification of industrial designs is ruled by the International Classification for Industrial Designs established by the Locarno Agreement of October 8, 1968, as amended.
Term and Rights
Industrial designs in Ecuador have a non-renewable term of ten years, counted from the filing date of the national application; in the case of applications that claim priority under a treaty, it will be counted from the filing date of the application for which the priority is claimed. In order to benefit from the right of priority, the industrial design application that invokes it shall be filed within six months of the other application.
Among the rights granted to the owner of the industrial design is the UIS PROHIBENDI, which prevents third parties who do not have approval from manufacturing, selling or importing for commercial purposes products that incorporate or reproduce the industrial design registered with SENADI. Furthermore, it entitles the owner to act against third parties that manufacture, sell, or import for commercial purposes a product whose appearance is similar, or whose design only has secondary differences from the protected design.
For five years after the grant of an industrial design registration SENADI retains the right to declare an industrial design invalid in cases where the subject matter does not constitute an industrial design, or does not meet the requirements for protection, or where for some other reason the grant is not eligible for protection as an industrial design.
Industrial Design Registration Process
The registration process begins by applying for an industrial design online through SENADI. An Ecuadorian intellectual property agent can help with the process. You need to submit the following:
- Applicant information, including whether the applicant is a natural person or legal entity, national or foreign, public or private;
- The nationality and domicile of the applicant;
- The title, type or kind of product to which the design is to be applied, and also the class and subclass of the product;
- The name, nationality and domicile of the designer or inventor, if they are not the applicant;
- The priority date of the application;
- The summary and claims of the industrial design.
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The request or application for registration of the industrial design shall be accompanied by the following:
- A graphic and photographic representation of the industrial design. In the case of two-dimensional designs incorporated in a flat material, the representation may be replaced by a sample of the material incorporating the design;
- A power of attorney and document of assignment of rights legalized by Apostille (notary);
- A copy of the priority document;
- Proof of payment of fees to SENADI Office. Fees at this time are US$ 526.46, which includes both the application filing and the granting of the registration certificate fees.
Within 15 days of filing SENADI will verify that the application meets all requirements. If not, you have 30 days during which an additional extension can be requested without losing priority to complete the filing requirements. If the requirements are not met within the allowed time frame the application will be considered abandoned. The application will be kept on file and confidential.
Once the application is complete it will be published in the SENADI Intellectual Property Gazette, and there will be a 30-day period for third parties to file an objection. The applicant has 30 days to respond to any objections (which may be extended once). After and objections and responses have been submitted, SENADI will weigh the evidence and arguments. If there is no opposition SENADI will examine the application for novelty and compliance with other rules, after which it will issue an approval or denial of the application. This decision is subject to appeal.
The application for an industrial design may be amended any time prior to the issuance of a decision, provided that the amendment does not entail a change in the subject matter of the invention or an extension of the protection. The industrial designs can be transferred between living persons or by succession; any such transfers must be registered with SENADI.
Costs to Register an Industrial Design in Ecuador
Costs to register an industrial design in Ecuador are as follows:
|Official fee for filing industrial designregistration||526.46|
|Professional fees (all registration procedure)||500|
Please note that SENADI offers discounts on the official fee of up to 90% to SMEs, independent researchers, higher education institutions, public sector entities, small and medium-sized farmers, popular and solidarity economy enterprises, as well as artisans that have met certain requirements.
Industrial designs are highly regulated and are protected under the following:
- Decision 486 of the Common Regime on Industrial Property of the Andean Community of Nations,
- A national standard,
- The Organic Code of the Social Economy of Knowledge, Creativity, and Innovation
- WIPO Convention on Industrial Designs,
- The Paris Convention,
- The Agreement on Trade-Related Aspects of Intellectual Property Rights, Annex 1C,
- The Locarno Agreement (mentiond above)
- The Hague Agreement.
by Erika Alexandra Alarcón Araujo, JD
Specialist in Intellectual Property Law