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It is always possible that distributors, representatives or agents (or any other type of commercial relation) of foreign individuals or companiescould attempt to register in Mexico trademarks owned by third parties and protected by registrations outside of Mexico. Mexican lawestablishes certain parameters protecting such marks when such have been duly registered in their country of origin. Accordingly, Article 151,Section V of Mexico’s Industrial Property Law (Ley de Propiedad Industrial) protects those foreign parties who have registered their mark inthe country where they reside (and not in Mexico) against the unauthorized registration of such marks by their agents, distributors,representatives or other users in Mexico. The Law provides that if a mark is registered in Mexico without authorization by one of suchrepresentatives, the Mexican Institute of Industrial Property (Instituto Mexicano de la Propiedad Intelectual or IMPI) may, upon petition of theforeign trademark owner, declare the Mexican registration null, since it was registered in bad faith.
On October 12, 2007 the Mexican Department of the Economy (Secretaría de Economía or SE) published in the DOF amendments to thegeneral rules and standards applicable to Mexican foreign trade. Such amendments provide public notice of various dates originally establishedfor complying with obligations related to the conversion of previously existing Maquila programs to the new export program established in theIMMEX Decree. The deadlines for complying with obligations were modified to, among others, provide the following: (i) deadline forratifying the address at which IMMEX program operations are undertaken, extending such to the last business day of May 2008; (ii) deadlinefor presenting information that has not been filed with the National Statistics, Geography and Information Institute (Instituto Nacional deEstadística, Geografía e Informática or INEGI), extending such date to January 20, 2008; (iii) extending the deadline for presenting the annualreport for IMMEX program participants until January 30, 2008; and (iv) extending the term in which the SE will assign new IMMEX programnumbers currently pending, which deadline is now January 30, 2008, providing that Maquila or Pitex program numbers may be used untilFebruary 1, 2008. Additionally, the SE established that companies certified to operate under the IMMEX Decree as shelter operators maycontinue with an individual IMMEX program for each foreign client they serve in order to facilitate the technical and material production foroperating their individual programs. Finally, the SE amended the guidelines for filling out certificates of country of origin (lines 1 and 6regarding data of the exporter and invoice), and the attachment pertaining to previous permits (specifying that for a vehicle to be considered“used” there is no maximum weight limit as long as its weight is not less than 5,000 kilograms, or approximately 11,000 pounds).
A draft NOM was recently published in the DOF which would cancel NOM-003-SCT/2000. The purpose of such NOM is to establish thecharacteristics, dimensions, symbols and colors of labels that must appear on all containers and packing which identify the class of riskrepresented during the transport and handling of hazardous substances, materials and waste. This proposal is mandatory on those shippers,carriers and recipients of hazardous materials and waste that travel by road, sea, and air. The proposal seeks to allow the easy identification,through visual awareness, of the risks associated with the contents of each container or package. The purpose is to allow authorities to be ableto: (i) recognize their general nature by the color, form and symbol appearing on the container and packaging which contains hazardousmaterials and waste; (ii) identify the nature of the potential risk posed by the hazardous materials or waste using symbols; and (iii) preventdangerous situations relating to the handling and storage of hazardous substances, materials or waste. The proposed NOM is consistent withvarious recommendations and rules approved at the international level.
The fiscal reform package published on October 1, 2007 includes an amendment to Article 89 of the Fiscal Code of the Federation (CódigoFiscal de la Federación or CFF), that establishes penalties for advising, counseling or providing services to completely or partially avoid thepayment of any tax or contribution in contravention of applicable Mexican tax laws and regulations. The CFF provides that an infractionoccurs in the following specific instances: when a person advises, counsels or provides services to another relating to the total or partialomission of payment of taxes or contributions; and when such person does so in violation of Mexican tax provisions. Notwithstanding theamendment, it is important to keep in mind that tax authorities will seek at all times to collect revenue they consider due and owing and, as thecase may be, to prosecute probable violations of tax laws or tax crimes. Based on this development, it is useful to keep in mind that the samearticle provides that advisors will not be considered to have committed an infraction when their opinion states that it could vary from positionsof the tax authorities, or that it could be interpreted in another way by such tax authorities.
On November 1 a new Official Mexican Norm (Norma Oficial Mexicana or NOM), NOM-179-SCFI-2007, was published in the DOF. SuchNOM will regulate those individuals or entities not regulated by Mexican financial laws (banks, single purpose lenders/SOFOLES, etc.) whichregularly or professionally carry out lending transactions secured by pledge guaranties (in which personal property is provided through a pledgeguaranty), with the purpose of providing increased certainty and security to consumers or clients of such lenders. The new NOM, which willapply to so called “Casas de Empeño” or “Montes Píos,” establishes the general terms of what information must be contained in advertising,which must be posted in a visible place in lenders’ establishments, and include information related to the percentage of the amount of sums lentcompared to the value of assets being pledged, the type of assets accepted in a pledge guaranty, annual interest rates, total annual financingcosts and warehousing expenses. In addition, the new NOM regulates the contents and types of contracts that said institutions or individuals offer, which include the following requirements: contracts must be filed with the Mexican Federal Consumer Protection Prosecutor(Procuraduría Federal del Consumidor or PROFECO, which is the agency in charge of enforcing the NOM); contain clear terms and conditionsand be in Spanish, written legibly; the form of execution and terms of the pledge or loan, costs and expenses for warehousing the assets pledgedand, in general, the previously mentioned advertising requirements must all be met. It is important to note that such NOM will enter into effect60 calendar days following its publication, which is December 31, 2007.
