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It is well recognized throughout the World that one must register a trademark in order to claim exclusive use of such. Mexico´s Industrial Property Law(LPI) accords great value to the use of trademarks, including use before they are registered. In this sense, the LPI establishes that the registration of atrademark does not take effect against third parties who, in good faith, previously used the same or similar trademark for equal or similar products orservices, so long as such third party user can show that it began using the trademark before the date of filing the trademark registration application or thedate of first use declared by the registered trademark´s owner. Additionally, the LPI establishes that the trademark registration will be declared null if athird party proves that it has used the same trademark in Mexico, or abroad, prior to the date of the filing of the trademark application or the date of firstuse declared by the trademark's owner. In all cases, it is worth noting that the ability to present a trademark nullity lawsuit against a registeredtrademark for prior use may be pursued within three (3) years following the date of publication of the trademark registration in Mexico.
Even though one of the advantages of arbitration is the possibility of resolving possible controversies in a substantially shorter term than what isregularly seen in a judicial proceeding, in certain commercial situations the nature of business implies that parties do not wish to wait for the decision ofa competent arbitrator or court. In these cases, with the goal of resolving the dispute or as part of preparation for the arbitral proceeding itself, theparties may agree to a "pre-arbitral proceeding" for urgent issues that require rapid resolution by a designated third party who has been previouslyauthorized by the parties to take immediate decisions and issue emergency orders prior to the formation of the arbitral panel, or a judge, as the case maybe. This type of proceeding is contemplated by both the International Chamber of Commerce (ICC), as well as the American Arbitration Association(AAA) and what is sure is that its validity and efficacy in Mexico is conditioned on the treatment of such proceedings under applicable MexicanMercantile Law.
The various civil codes of Mexico´s states provide that in the case of a marriage entered into under the community property marital regime, ownership ofall assets lies with both spouses. However, this principle has exceptions as set forth in the matrimonial agreement entered into by the married partiesand, according to applicable civil code sections; for example, it is common that the goods acquired prior to entering into the marriage, and thosereceived from a family member by donation or inheritance, do not form part of the marital property estate. With that said, Mexican courts haveconstantly debated whether or not a community property estate may take precedence over a third party purchasers in good faith. Such a situation couldoccur when only one of the two spouses appeared as owner of real property as recorded in the Public Registry of Property. In this regard, Mexican courtjurisprudence recognizes that in the sense the community property estate may be opposed against liens or encumbrances on the common assets, even ifit is not registered in the Public Registry of Property. The current trend provides that a real property right acquired by a third party in good faith takesprecedence over the lien or encumbrance relating to the property when such real property is not registered in the corresponding Public Registry ofProperty. The predominating view looks to protect the property rights of the acquiring good faith purchaser, which brings up the point of alwaysverifying the marital property regime of the seller and requiring the spouse to appear when the property is considered to form part of the communityproperty marital estate.
The Mexican Social Security Institute ("IMSS") is not authorized to register, on its own authority and unilaterally, workers who are not registered bytheir employer. In this way, if the IMSS carries out an inspection visit to the employer, resulting in the discovery of workers who have not beenpreviously registered by the employer, the IMSS and its inspectors are obligated to obtain the facts and notify the employer within thirty (30) calendardays after the inspection visit whether all the employer's employees are registered, which decision must be well founded and documented, in the absenceof which the employer may be sanctioned according to applicable law.
The Mexican Department of Communication and Transportation (SCT), through the Federal Telecommunications Commission (COFETEL) submittedto the Federal Regulatory Improvements Commission (COFEMER) a new version of its pre-draft called "Resolution by which the Authority of theFederal Telecommunications Commission Establishes Rules For the Implementation of Portability of (Telephone) Geographic and Non-GeographicNumbers." The numerical portability provisions refer to the possibility that telephone service users may keep their telephone number without takinginto account the Federal Public Telecommunication Services provider, in such a manner to be able to freely change telephone services provider withoutchanging their telephone number. It is expected that within the next several days new rules for implementing the numerical portability measures, and atimetable for implementation through a new draft could possibly take place in November, 2007.
On June 1st , important amendments to Mexico´s Regulations and Criteria of a General Nature in Foreign Commerce matters were published. The mostsignificant amendments included the following: (i) multiple companies could be located at the same domicile, whether (a) consisting of two or morecompanies authorized to operate under the decree for the development of manufacturing, maquiladora and exportation industry; or (b) oneor more companies with an IMMEX program, along with companies or individuals who do not have such a program, so long as such parties legallypossess the real property where the domiciles are located and the domiciles themselves are physically marked off in order to show the independence ofeach office; and (ii) articles imported under PROSEC (Sectorial Promotional Program) may transact operations with one or more customs entries(“remesas”) or through one or more ports of entry.
