Counterfeit pharmaceuticals are of great concern at the moment, given the COVID-19 pandemic and in light of the recent EUIPO/OECD report on the topic (reported by Class 46 here). In that context, Maria Cecilia Romoleroux of the MARQUES ACPT Team brings news of a successful recent action in Ecuador.

The action has led to six people involved in the counterfeiting of pharmaceuticals being handed prison sentences. This represents the largest group of people sentenced for being part of a distribution network of counterfeit medicines in Ecuador.

Investigation and prosecution

The Attorney General’s Office with the support of Customs and the Tax Crimes Unit carried out a simultaneous raid on several commercial premises and homes located in the cities of Quito and Ibarra, following several months of telephone calls and personal follow-ups. They seized hundreds of thousands of pharmaceutical products and arrested seven people involved in the operation.

Almost everyone involved in the illegal operation had family ties to each other or had worked together for several years, using legal businesses as fronts including several stores located in the center of Quito and Ibarra. Those involved also distributed original pharmaceuticals, in inappropriate conditions, and lacked authorization to store or distribute these products.

The Attorney General’s prosecution was joined by a private prosecution on behalf of the pharmaceutical manufacturer. This allowed for a joint effort in which several investigations were carried out confirming that the seized products were counterfeit and the degree to which each person charged had participated in the illegal network.

Trial and sentencing

At the earlier hearing, the judge accepted the charges presented against all of those involved in the operation, following which the case went to oral trial before a criminal court consisting of three judges.

In the oral trial hearing that lasted several days, all the evidence collected in the investigative process was disclosed, proving the existence of the offence and the participation of each person accused.

In an oral sentence issued at the end of the hearing, the judges unanimously decided to sentence six of the seven defendants to three years in prison, highlighting the seriousness of the crime and its potential risks to the health and safety of the public.

Those sentenced requested conditional release, which would have meant no prison time being served. The prosecution did not present any opposition to this request, but the manufacturer emphasised the gravity of the crime and the ease with which the same offence could be committed again. The judges then rejected the defence’s request for conditional release.

Those sentenced have appealed against the ruling. To date, the appeal has not been resolved.

Importance of the case

The importance of this ruling lies not only in the number of people sentenced, but also in the way in which the proceeding was handled, in particular by turning it into an “illicit association” case in the face of the procedural inconveniences of investigating and prosecuting the matter regarding the sale of counterfeit pharmaceuticals.

This is the second sentence obtained in Ecuador for the counterfeiting of pharmaceuticals, and in both cases a recognized international manufacturer intervened.

The sentence complies with the control and sanction responsibilities of the judicial authorities. Additionally, it seeks to be an exemplary sanction for potential offenders, and sets a precedent that should be used in similar cases.

Maria Cecilia Romoleroux is Head of the IP and Regulatory Department at CorralRosales in Ecuador, which acted for the pharmaceutical manufacturer in this case, and is a member of the MARQUES ACPT Team

MARQUES will soon be hosting a webinar on how brand protection is affected by the coronavirus pandemic, featuring members of the ACPT Team. Look out for details soon!