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The registration of a trademark is intended to provide the owners of such trademark with the right to preclude theunauthorized use of such trademark or any trademark deemed sufficiently similar as to create confusion in distinguishingsuch marks. Nevertheless, Mexico’s Industrial Property Law provides three exceptions in which, notwithstanding theregistration of a trademark, exclusive rights to a trademark may not be claimed against third parties, and such exceptionsconsist of the following:1. The trademark does not affect third parties using such trademark in good faith or a similar one prior to the date in whichthe trademark registration application was filed, or the date of first use declared by the owner of such trademark.2. Likewise, the exclusive right to a trademark cannot be enforced against persons using, marketing, distributing, etc. suchtrademark, so long the introduction of such trademark in the market is done legally by the owner of the trademark or alicensee of such trademark. This is the case of parallel imports, which was addressed in a previous edition of this report.3. Finally, a registered trademark cannot be enforced against a third party if such party is a person (individual or entity)using his or her name, or the entity’s name on the products that it produces or distributes, the services it provides tobusinesses, so long such use is performed in its customary manner and that the letters used in such mark are clearlydistinguishable from a homonym already registered as a trademark.In each case described above there must be a careful analysis to determine the scope of a trademark’s exclusivity, since inmany cases a registered trademark cannot be enforced against third parties that fall in any of the exceptions describedabove.
The Federal Fee Law was recently amended. One of the amendments provides that starting with the 2008 fiscal yeartaxpayers shall pay fees for exceeding the maximum discharge quotas in wastewater collection bodies, especiallydischarges with Fully Suspended Solids and Chemical Demand of Oxygen (“DQO”), which are regulated by Table “D” ofarticle 278-B of the Federal Fees Law. With regards to the same matter, on May 29, 2008 the Official Journal of theFederation published the new 10 SAT format to declare payments related to national waters in order to better meet theregulations in effect.
On July 21, 2008, the Official Journal of the Federation (DOF) published a decree that amends and repeals several articlesof the General Population Law (“LGP”). Such decree decriminalizes certain acts that were considered criminal offenses,and provides penalties that include administrative fines and/or deportation from the country. The most noteworthy acts thathave been decriminalized include: i) to enter the country without a re-admission permit after deportation by the immigrationauthorities; ii) to hide or omit a prior deportation by the immigration authorities in the application of an entry permit; iii) toremain in the country illegally; iv) failure to comply with all administrative provisions set forth by the immigrationauthorities; v) to carry out activities that are not authorized in the entry permit; vi) to fraudulently represent an immigrationstatus that is different from the one obtained; vii) to enter the country without the necessary documentation; or viii) marry aMexican citizen for the sole purpose of remaining in the country. A violation to such provisions will be penalized with afine ranging from 20 to 100 days of the minimum wage in effect for the Federal District ($1,052.00 to $5,260.00 Mexicanpesos) and deportation from the country pursuant to article 125, which is also amended. Monetary fines increasedconsiderably in cases where Mexican citizens marry foreign citizens in order to allow them to remain in the country, sincethe maximum fine was $5,000 Mexican Pesos and now such fine amounts to 100 to 500 times the minimum wage in effectfor the Federal District ($5,260.00 to $26,295.00 Mexican pesos).
The First Court of Mexico’s Supreme Court of Justice issued in June of this year jurisprudence Ia./J.22/2008, entitled,Depositaries designated by the Tax Authority. The mere change of location of personal property from the location in whichthe deposit was created does not amount to an act of ownership, therefore, the provision in the first paragraph of article112 of the Federal Tax Code does not apply. Pursuant to Article 112 of the Federal Tax Code in effect, a depositary orbailee designated by the tax authorities which, to the detriment of the federal tax authorities, disposes of the personalproperty under deposit or of any of the byproducts or security that amounts to a taxable event, shall be subject toimprisonment for the period of time provided by such provision of the Tax Code. In such jurisprudence, the courtdetermined that the simple change of location of the personal property under deposit does not amount to an act ofownership by the depositary. Given the foregoing, the First Court of Mexico’s highest court determined that the authorityin each jurisdiction will have to find, on a case-by-case basis, whether there were any acts of ownership involved in order toapply the penalties provided in Article 112 of the Federal Tax Code.
While the media in the United States (The New York Times) debates on whether teenagers should spend more time readingbooks rather than obtaining information off the Internet, on July 24, 2008, the Official Journal of the Federation (DOF)published a new Law for the Fostering of Book Reading. With such law, Mexico joins other countries with great editorialtradition with laws on book reading, such as Spain, France, Germany and Argentina. This new law provides for a dualapproach to foster and promote the reading of books and designates the Department of Public Education, the NationalBoard for Culture and Arts, the National Board for the Promotion of Reading Books and the state and municipalgovernments, as well as the Government of the Federal District, as the responsible authorities under such law. In additionto development and promotion activities, in order to strengthen the cultural and educational scene of Mexico throughreading books, the Law for the Fostering of Book Reading includes cultural development aspects with regards to theobservance of copyrights and sets forth price controls through a fixed price for books in order to protect consumers.
