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In previous publications, we have informed our readers that a registered trademark in Mexico may lose its validity based on nullity or expirationprocedures, and other causes listed in the law. In addition to losing a trademark registration based on nullity and expiration, a trademark owner may loserights if the mark is “cancelled” in accordance with Mexican intellectual property law. Article 153 of the Intellectual Property Law (Ley de la PropiedadIndustrial) provides that “A trademark registration will be cancelled if its owner has caused or tolerated the mark to become transformed into a genericname corresponding to one or other product or services covered by its registration, so that, in the commercial and generalized public usage of the mark,the mark loses its distinctive character and is no longer a means of distinguishing the product or service to which it applies.” In the marketplace, varioustrademarks exist which, because of the form in which they were disseminated by their owners, continue to be confused with the technical name that mustbe applied to their product, and in this manner cause the mark to be converted into a generic name, thus leading to its cancellation. For this reason, it isalmost always advisable for a trademark owner to designate its mark with the proper registration sign “®”, and at the same time, disseminate in a distinctmanner the technical name of the product in question. In this way, a trademark owner can avoid having its trademark converted into a generic term,unless it can be shown that the trademark owner “deliberately” allowed the mark to be converted to generic use.
In October, the Mexican federal House and Senate approved a decree enacting the new Energy Efficiency Law (Ley Para el Aprovechamiento de laEnergía). The new law will be sent to Mexico’s president for execution and publication in the Official Journal of the Federation (Diario Oficial de laFederación). The new statute creates the National Commission for Efficient Use of Energy, as a decentralized agency of the Department of Energy. ThisCommission will issue standards for quantifying greenhouse gases in the exploration, production, transformation, distribution and consumption ofenergy, as well as carbon emissions credits for taking environmentally sustainable action. The Commission will also implement the National Subsystemof Information on Energy Efficiency, to which governmental and private sector parties will be required to provide information on measures they havetaken to conserve energy, and the result of such measures, in conformity with the regulations of the new law. The Commission is charged withimplementing, updating and publishing a registry of users that have obtained certification as a responsible energy user, whether at the individual orinstitutional level. Regulations to the law will include parameters and standards to be considered by energy experts and auditors who will be responsiblefor granting such certifications.
On October 13, 2008 a decree was published in the Official Journal of the Federation (Diario Oficial de la Federación or DOF) containing Mexico’sagreement with the Government of the People’s Republic of China in regard to compensatory duties previously imposed by Mexico on Chinese goods.Based on the published decree, Mexico will be required to implement measures to cancel the reservations contained in Annex 7 of the Accession Protocolof China to the World Trade Organization (WTO). The purpose of this is for Mexico to eliminate antidumping duties on products previously listed inpublications in the DOF originating from China, which means that Mexico will not be able to invoke its reservation of Annex 7 in the future. The decreecontains two Annexes: Annex 1. – Identification of products on which compensatory duties will be eliminated progressively through a transitionalmeans; and Annex 2. – Identification of products on which compensatory duties will be eliminated immediately. While the decree contemplates thepossibility of the progressive elimination established in Annex 1, such decree also states that no compensatory antidumping duties will be able to beimposed on products originating from China starting December 11, 2001. The forgoing results from China’s entry in the WTO and the end of the term ofthe original reservation made by Mexico, which means that Mexico’s market will eventually be totally open to products originating in China.
On October 28, 2008 Mexico’s Chamber of Deputies approved amendments to various Mexican laws collectively referred to as the “Energy Reform”.The Energy Reform presented by President Felipe Calderon’s administration, which has generated much anticipation on the part of Mexicans andforeigners alike, does not rise to the level requiring constitutional amendments or imply a fundamental change of the Mexican Government’s monopolyon petroleum and hydrocarbons. Even if the reform does not open significant new sectors to private investment, it does confirm that private companiesmay provide goods and services required by Petróleos Mexicanos (PEMEX) and other state-owned companies, but the payment for such goods orservices may not be in kind or imply a profit participation in oil production. In general terms, the so-called Energy Reform is limited to granting greaterautonomy to PEMEX’s administration and decision-making processes, making such more closely resemble the decision-making authority enjoyed byprivate companies. In addition, the Energy Reform creates “Citizen Bonds” that allow Mexican companies and citizens to invest in the petroleum sectorvia Mexico’s financial market. This reform seeks, in terms more programmatic than concrete, to increase investment in, and exploration of, renewableenergy sources.
