Monday, 13 October 2014

Ecuador decriminalises IP crimes -- for the time being

IP Tango learns that, following the adoption of a comprehensive Criminal Code, Ecuador has decriminalised both counterfeiting and the infringement of intellectual property rights. This new law is in conflict with the TRIPS Agreement, Article 61 of which states:
Members shall provide for criminal procedures and penalties to be applied at least in cases of wilful trademark counterfeiting or copyright piracy on a commercial scale. Remedies available shall include imprisonment and/or monetary fines sufficient to provide a deterrent, consistently with the level of penalties applied for crimes of a corresponding gravity. In appropriate cases, remedies available shall also include the seizure, forfeiture and destruction of the infringing goods and of any materials and implements the predominant use of which has been in the commission of the offence. Members may provide for criminal procedures and penalties to be applied in other cases of infringement of intellectual property rights, in particular where they are committed wilfully and on a commercial scale.
There are however a number of measures which, if not as directly applicable and effective as the criminal law, are still available to combat the sale of counterfeit goods. These measures include administrative actions, such as border measures; civil actions; and actions based on the Ecuadorian Constitution/

The government is also said to have announced that it is reviewing the position, and proposals to amend the Criminal Code and restore criminal penalties for IP are currently under consideration by the National Assembly.

This blogger is somewhat alarmed at the cavalier manner in which such an economically important measure as the provision of criminal remedies for certain IP infringements has been treated: perhaps the Ecuador government is unaware of the damage caused to legitimate business interests and ultimately to its own tax revenue by inadequate IP enforcement measures.

Source: "ECUADOR: IP Infringements Decriminalized", INTA Bulletin Vol. 69, No. 18 (information contributed by Maria Cecilia Romoleroux, Corral Rosales Carmigniani Perez, Quito).

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