Trade Dress in Ecuador

Trade dress, also known as apariencias distintivas, is a non-traditional distinctive sign that protects the shape, design, combination of colors, arrangement, and other external elements that make a product or establishment recognizable in the market.

In Ecuador, this concept is regulated under Articles 426 and 427 of the Organic Code of the Social Economy of Knowledge, Creativity and Innovation (COESCCI) as well as Articles 235 and 236 of the Intellectual Property Law, where trade dress is defined as:

“Any set of colors, shapes, presentations, structure and distinctive designs characteristic of a commercial establishment, which identify and distinguish it in the provision of services or sale of products.”

Like commercial names, trade dress follows a regime based on effective use in the market. This means that its protection does not depend solely on registration, but also on its real use that makes it recognizable to consumers.

Protectable Elements

Trade dress may include:

• Packaging and containers (e.g., bottles, boxes with distinctive designs).
• Three-dimensional product shapes (such as the particular silhouette of a glass bottle).
• Store decoration and layout (colors, furniture or interior design that create identity).
• Visual combinations of colors, shapes or presentations that allow differentiation in the market.

Requirements

For trade dress to be protected in Ecuador, it must meet the following criteria:

• Distinctiveness: consumers must associate it with a specific business origin.
• Novelty: it must not be a copy or imitation of already existing presentations.
• Non-functionality: it cannot rely on technical or essential product features.
• Identifiability: it must generate differentiation in the market.