One of the most common questions we receive from companies launching new products is: Will selling a product cause an industrial design to lose its novelty? In Ecuador, the answer is generally yes, but there are important and often overlooked exceptions that can make the difference between losing protection and securing exclusive rights.

This article outlines the legal framework applicable to industrial designs in Ecuador, focusing on novelty, exceptions, priority rights, and the registration process.

What is protected as an industrial design in Ecuador?

 

Industrial designs in Ecuador protect the particular appearance of a product, derived from any combination of lines or colors, outward shapes or forms, textures or materials, provided that these features do not alter the product’s intended purpose or function.

Industrial designs in Ecuador benefit from a 6-month priority period under the Paris Convention and Decision 486.

A very common mistake among companies with patent portfolios is thinking that the Patent Cooperation Treaty (PCT) also applies to industrial designs. This is not the case. The PCT only covers inventions, not designs. In the case of Ecuador, registration must also be done directly at the national level, since the country is not a party to the Hague Convention.

Industrial designs are granted for a non-renewable term of ten (10) years, counted from the filing date of the priority application, and no maintenance fees are required during their validity.

Novelty: The General Rule and its Exceptions

As a general principle, an industrial design must be new at the time of filing.

Novelty is lost if, before the filing date or a valid priority date, the design has been made accessible to the public through: use, exhibition, advertising, or commercialization (sale).

In practice, a sale will usually destroy novelty when it exposes the design to the public—for example: offering products on the market without confidentiality, deliveries to customers, catalogues or online listings showing the design, commercial distribution where the appearance becomes known.

Ecuador applies the Andean Community IP regime, specifically Andean Community Decision 486, which provides a crucial safeguard: the non-prejudicial disclosure rule.

Under this regime, a disclosure—including a sale—does NOT destroy novelty if it occurs within the 12 months prior to filing (or prior to the priority date, if claimed), provided that the disclosure originated from one of the following sources:

  1. The designer or the successor in title. This includes the company that owns the design. Importantly, commercialization or sale by the owner is expressly covered. The policy behind this rule is to protect designers and companies who test the market or disclose the design inadvertently before filing.
  2. An improper publication by the competent national office If the disclosure results from an error attributable to the authority, novelty is preserved.
  3. A third party who obtained the design from the designer or owner This includes leaks, breaches of confidence, or disclosures by manufacturers or distributors, as long as the information can be traced back to the rightful owner.

In addition, you should consider that novelty is only affected if the design is really made accessible to the public. Accordingly, disclosures made under non-disclosure agreements (NDAs), development or testing arrangements, or limited confidential presentations do not count as novelty-destroying, because the public cannot access the design.

According to our local law, if the lack of novelty is obvious, the authority may reject the application ex officio In practice, if no opposition is filed, industrial design applications are usually granted without a substantive novelty analysis

Summary of practical points:

  • Ecuador applies the Andean Community IP regime, specifically Andean Community Decision 486, which provides a crucial safeguard: the non-prejudicial disclosure rule.
  • Under this regime, a disclosure—including a sale—does NOT destroy novelty if it occurs within the 12 months prior to filing (or prior to the priority date, if claimed), provided that the disclosure originated from one of the following sources:
  • In addition, you should consider that novelty is only affected if the design is really made accessible to the public. Accordingly, disclosures made under non-disclosure agreements (NDAs), development or testing arrangements, or limited confidential presentations do not count as novelty-destroying, because the public cannot access the design.
  • According to our local law, if the lack of novelty is obvious, the authority may reject the application ex officio In practice, if no opposition is filed, industrial design applications are usually granted without a substantive novelty analysis

In Ecuador, as in many other countries, the key is timing. A business decision made without guidance can either close—or save—the door to design protection.

If your company is about to launch a product or has already marketed it, reviewing the disclosure schedule is essential to avoid missing the opportunity to protect it as a design.