Mecanismos de protección jurídica del Know-How en franquicias comerciales en Ecuador.

Abstract

At present, the world is immersed in the technological era, characterized by new practices and the evolution of concepts, which has compelled the creation of new laws to adapt to these changes. In this context, since the reform of the Commercial Code in 2019, the franchise contract has been formally recognized. Consequently, the need arose to allocate know-how with the objective of preserving a distinctive element—not necessarily patented—of a specific activity, which has become an indispensable component between franchisor and franchisee. This research analyzes the different legal and contractual mechanisms within Ecuadorian legislation, providing a doctrinal, regulatory, and comparative approach for the identification of the main normative limitations. Although know-how and franchise agreements are supported by Ecuadorian law, their practical application remains scarce, ambiguous, and poorly specialized. As a result, a significant lack of legal clarity and protection has been identified: there is no formal registry nor efficient mechanisms that ensure the secure protection of confidential information. This gap has prompted the need for a completely new model that incorporates standardized clauses within a registration and validation system, aimed at achieving efficient regulation of knowledge transfer. By addressing these aspects, Ecuador could create a more favorable scenario for innovation, competitiveness, and above all, economic growth, where know-how is properly valued, safeguarded, and effectively transferred as an intangible asset, without the risk of “talent leakage.”