Exclusivity of the use of marks and parallel importations. While the purpose of registering a mark is to make effective the exclusive right to usesuch, in accordance with the Industrial Property Law, there exist exceptions that allow for the use of registered marks by third parties. One ofthese exceptions is known as parallel importations, which consists of allowing the use of a registered mark by a third party that uses, sells,distributes, etc., as long as the introduction of the mark into commerce has been done legally by the owner of the registration or one who has arecognized license for such. In these cases, the product that has the mark must be legitimate, and the third party, without being the owner of themark, must have the right to use such. The requirements for such purposes are: (i) that the introduction of the product into Mexico commerce iscarried out by the person in the foreign country that is the owner or licensee of the registered mark; and (ii) that the holder of the registered markin Mexico and in the foreign country be, on the date of importation of the product, the same person or members of the same economic group orbe licensees or sub-licensees. The regulations to the Law indicate when two different parties are considered as part of the same economic group.Given the growing international trade of products covered by marks, there is a natural increase in parallel importations cases.
Amendments to various environmental laws were recently published in the Official Journal of the Federation. Among them were amendmentsto the General Law of Ecological Equilibrium and Environmental Protection (LGEEPA) and the General Law for the Prevention and IntegralManagement of Wastes (LGPGIR). Below are details of some of the amendments:I. Amendments relating to biodegradable detergents and waste from the mining-metallurgical industry: On May 19, amendments to theLGEEPA and the LGPGIR were published by which section XII was added to article 89 of the LGEEPA, for the purpose of including, asan element within the criteria for the sustainable use of water and the aquatic systems, those practices of the productive sector relating tothe quality of surface and underground waters. Additionally, the second paragraph of article 19 was modified and orders the creation of anOfficial Mexican Norm relating to the biodegradability of detergents, in order to prevent water contamination, for which the Department ofthe Environment and Natural Resources (SEMARNAT) is granted six months to issue said Official Mexican Norm. Given such,SEMARNAT must consider the criteria and norms to avoid the contamination of water derived from the production processes and issue anew Official Mexican Norm to require the biodegradability of detergents that are sold or used in Mexico. It is important to mention that theamendments fail to mention if there will exist changes to stricter criteria standards or permitted discharge tables currently established by theFederal Law of Fees in relation to national receiving bodies, which could imply a greater payment of fees relating to discharges.II. Amendments relating to the mining-metallurgical industry: On June 20, 2007, the amendment to article 17 of the LGPGIR entered intoforce in order to establish that mining-metallurgical industry waste falls under federal jurisdiction, and the generation, hazard level andhandling will be regulated by means of Official Norms issued by SEMARNAT, which is meant to give greater certainty concerning theauthority competent to regulate such. It is important to mention that materials or waste that can be used as construction material areexcluded from federal jurisdictionIII. Amendments relating to tax incentives to improve the environment: A recent amendment to article 22 Bis, section VI of the LGEEPAestablishes the possibility that those certified environmental persons may obtain tax incentives for the carrying out of processes, servicesand manufacturing products. The amendment is congruent with the principal of creating incentives for those that protect the environmentand make use of natural resources in a sustainable way, in accordance with that set forth in section IV of article 15 of the LGEEPA.
The Second Chamber of the Supreme Court of Justice recently issued jurisprudence resolving the contradiction of rulings that existed withrespect to the principle of finality and the need to exhaust the administrative lawsuit before going to a federal appeal (amparo). Thecontradiction was finally resolved by ruling that since article 28 of the Federal Law of Contentious Administrative Procedure contains greaterrequirements to grant a suspension than those foreseen in the amparo law, it is not necessary to first exhaust said procedure before turning to anamparo.