ECUADOR Law and Practice Contributed by: Arianna Zurita Farías, Annabel Muñoz, Javier Estupiñán and Juan José Flores Rabascall, VIVANCO & VIVANCO
4.5 Functionality and Technical Features A feature is considered “solely dictated by func- tion” when its shape or appearance is indispensable to achieve a technical result and does not serve an ornamental purpose. If alternative designs exist to achieve the same function, the feature is generally not regarded as excluded on functional grounds and may still be protectable. Partial designs are, in principle, protectable to the extent that the claimed features meet the require- ments of novelty and individual character. Protection is limited to the specifically claimed visual aspects, and exclusions apply only to elements that are purely functional or lack independent ornamental character. A design may be refused or subsequently invalidated if it is shown that its appearance is exclusively deter- mined by technical necessity, leaving no room for design freedom. In such cases, it is considered not to meet the protection requirements set out under Andean Community Decision No 486. Trade secret protection in Ecuador is primarily gov- erned by Andean Community Decision No 486, par- ticularly Articles 258 to 266, and is complemented by COESCCI, which reinforces confidentiality safeguards in proceedings involving trade secrets. A trade secret is any undisclosed information law- fully controlled by a natural or legal person capable of being used in productive, industrial or commercial activity – and of being transferred to a third party. It may include technical, scientific, industrial, commer- cial organisational or financial information, such as product characteristics, manufacturing processes or distribution and marketing methods. Protection arises if three cumulative elements are met: the information is secret, it has commercial value because it is secret and its legitimate holder has adopted reasonable measures to keep it confidential. 5. Trade Secrets 5.1 Legal Framework and Protectable Information
5.2 Reasonable Measures and Confidentiality Owners must take reasonable measures to preserve secrecy, as protection under Decision 486 depends on the information having been subject to such measures by its legitimate holder. In practice, Ecuadorian law expressly supports confidentiality warnings, contrac- tual or employment-based duties of reserve, and con- fidentiality clauses in agreements involving technical knowledge, assistance or engineering services. Disclosure to employees or third parties does not automatically destroy protection, provided access is given on a confidential basis and the information remains secret. Employees and any person who gains access through work, professional functions or busi- ness relations, after being warned of its confidential nature, must not use or disclose it without justifica- tion and consent. Likewise, an authorised third party may use the secret, but must not disclose it unless otherwise agreed. Unauthorised disclosure or use in breach of contractual or labour-based confidentiality obligations constitutes unfair competition. 5.3 Misappropriation of Trade Secrets Misappropriation of trade secrets in Ecuador is treated as an act of unfair competition under Decision 486. It includes: • unauthorised use of a trade secret accessed under a contractual or employment-based duty of confi- dentiality; • unauthorised disclosure for personal gain, third- party benefit or to harm the legitimate holder; and • unlawful acquisition or use by means contrary to honest commercial practices, such as industrial espionage, breach of contract, abuse of confi- dence, disloyalty or inducement to commit such acts. Employee disputes are therefore typically addressed through labour or contractual confidentiality duties, while disputes involving business partners or compet- itors are assessed under the same unfair competition framework and any agreed confidentiality obligations. Procedurally, the affected party may seek relief before the competent authority, and Ecuadorian law supple- ments this with judicial and administrative enforce-
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