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The Mexican IP authorities have implemented new procedures for renewing trade mark applications that have been pending for ten years.
Mexican law states that a registered trade mark is valid for ten years from its filing date and that it may be renewed for an additional term of ten years. However, if the trade mark registration has not yet been granted after ten years, it is not possible to request a renewal. When the registration procedure is delayed for more than ten years, the authorities will now grant a Certificate of Registration.
At the same time, an official action will be filed requesting that the renewal petition be filed within a period of six months. Since the six month term is not supported by the Mexican Law of Industrial Property (LIP), IP practitioners must rely on a supplementary law, titled the Federal Law of Administrative Procedures (FLAP). This law governs terms for administrative acts not provided in the LIP. Article 32 of the FLAP establishes that if the LIP does not regulate terms for notifications, they must not exceed ten days as of their issue date. In some cases, the term of ten days is not sufficient to obtain the renewal instructions.
However, it must be relied upon to ensure that the renewal petition has the necessary legal support. Thus, trade mark owners must be careful when receiving Certificates of Registration in Mexico together with official actions requesting to file a renewal, since the six month term is not supported by law and could be easily refuted in a litigation procedure. Source: Managing Intellectual Property Magazine, Mar 2009.s accessible over the internet for private purposes; and v) a recognition of so-called flexible licences that follow the Creative Commons guidelines or the rules in similar schemes. It is expected that the draft law will face strong opposition from authors and the cultural industries. Trade mark law The concept of fair use has not developed in trade mark law to the same extent as it has under copyright law. However, as in copyright law, society can have a legitimate interest in trade marked symbols for reasons other than those that the law protects.
Society may consider that it is important to be able to use trade marks for purposes that are essentially non-distinctive or that do not cause confusion among consumers. Accordingly, in general terms, users are implicitly authorized by the law to print on their products or packages the trade marks of products or services that have been used to make their own. Mexico's trade mark law is not explicit about the limits to this right. However, it has worked in practice, perhaps as in copyright law, based on the constitutional rights of free speech. Trade mark law does not confer an express limitation provision, nor does it stipulate parameters in connection with the limitation. There is no such three-step test doctrine in the Paris Convention, and therefore there are no indications when the free use of trade marks begins to be ordinary, harming or abusive. In the end, the governing rules can simply be based on the rules of reason and fairness.
Parody is also an issue for trade mark law. The questions raised in the trade mark field are similar to those in the area of copyright law, although they are principally centred on consumer confusion and other trade mark law theories. Under trade mark law parody has been justified when a consumer can differentiate between the original and the parodied trade mark. Parody principles apply equally to trade marks, in particular those that limit parody to humour and criticism. Mexico's Trade Mark Law does not address parody directly, but appears to recognise it as a limitation or defence in favour of users. This defence does not cover use as a distinctive symbol in trade but does cover use as an artistic expression or even in commerce, where it is a non-disparaging reference in acomparative advertisement or similar form. Constitutional rights of free speech allow parody as it also has permitted it in connection with works-of-authorship and character performances. Thus, artists or scholars can "use" trade marks for humorous criticism exclusively, as long as they do not target the trade mark owner itself, but use the trade mark to highlight a social problem or situation. Likewise, competitors of the trade mark owner or consumers of the trade marked product or service can both rely on the parody limitation to defend themselves from infringement claims. Source: Managing Intellectual Property Magazine, May 2009
