The CCN Mexico Report™ is now available in audio format. Listen to the podcast and follow us on Spotify or wherever you get your podcasts.
The opening of global trade allows trademark owners to penetrate new markets. Occasionally, the owner of a trademark in a given country (and othercountries in which it plans to introduce products or services) after growing its business, decides to register its trademarks in new territory. In order to dothis, the trademark owner begins application procedures to obtain trademarks in such countries. However, the reality is that in the absence of specificinternational treaties on intellectual property, individual countries have the right to regulate the registration of trademarks, including prohibitions orlimitations on registering certain marks. In addition, it is also possible that the trademarks sought have already been applied for, or similar marksalready exist in the desired country. With this being the case, it is highly advisable to carry out a search in any of the countries the trademark ownerwishes to register a trademark prior to filing a trademark application, which also happens to be the case in Mexico, where applicants should search theMexican Institute of Industrial Property (Instituto Mexicano de la Propiedad Industrial or IMPI) database in order to determine if any impediments thatcould affect registration exist (such as marks that are the same or similar in degree of confusion). This will allow trademark applicants to makeinformed decisions, whether this means modifying their marks to enable registration or contesting previously registered marks with available legalarguments.
On December 24, 2008, the Mexican Department of the Economy (Secretaria de Economía or SECON), published in the Official Journal of theFederation (Diario Oficial de la Federación or DOF) the new “Decree establishing conditions for the permanent importation of used vehicles” (the“Decree”). The Decree entered into force on January 1, 2009 and shall be effective until December 31, 2010. Such Decree nullifies previouslypublished decrees from August 22, 2005 and April 26, 2006, unifying in one single decree the conditions applicable to the permanent importation ofused vehicles into Mexico, including the border region and the country as a whole. The new Decree forms part of the measures implemented bySECON in order to modify Mexican customs rules for permanently importing used vehicles, in accordance with the provisions of the North AmericanFree Trade Agreement (NAFTA), which establishes that beginning on January 1, 2009 Mexico may not prohibit or restrict the importation of usedvehicles from the U.S. or Canada that are ten years old or older. Other measures adopted in the Decree include a new customs classification for usedvehicles (see the Decree amending Tariffs of the Law of General Importation and Exportation Duties (Ley de Los Impuestos Generales de Importacióny de Exportación) published in the DOF on January 24, 2008, and the corresponding amendment to Annex 2.2.1 of the Decree through which SECONissued Rules and Criteria of a General Nature in Foreign Commerce Matters (see DOF of December 29, 2008) which establishes the requirements forobtaining a permit from SECON in order to carry out such importations. The new Decree also provides for a 10% ad valorem rate on customsclassifications applicable to the permanent importation of used vehicles, exempting such vehicles from obtaining a prior permit and certificate of originso long as the vehicle identification numbers correspond to the manufacture or assembly of the vehicles in Mexico, the United States or Canada andshows the vehicles to be of a year-model that is ten years or more from the year of importation, and/or vehicles imported by residents of the borderregion which shall remain in such region (the year-model is between five and nine years from the time of importation). Notwithstanding the new rules,importers must still register their permanently imported used vehicles on the Public Vehicle Registry and are required to meet other non-age relatedrequirements such as restriction on circulation in the vehicles’ country of origin, the physical-mechanical conditions of vehicles, environmentalprotection, and demonstrating that the vehicles have not been reported as stolen.
In a private session on November 19, 2008, the Second Chamber of the Mexican Supreme Court issued case decision number 2a./J.188/2008 under thecaption “Employer Liability in Labor Matters. If the Exclusive or Principal Beneficiary of Labor Services Rejects Responsibility Fully and Plainly, theBurden of Proof Shall Fall on Such Party” so that in determining whether employer liability exists in a labor lawsuit filed by an employee, in which theplaintiff alleges the exclusive or principal beneficiary of his or her services is an individual or entity other than the parties that signed the laboragreement, and if the defendant employer rejects such liability plainly and fully, the burden of truth falls on the plaintiff. This is because the negativeresponse of the defendant provides no confirmation whatsoever of the employment relationship and it is legally improper to impose on a co-defendantthe obligation of proving a negative fact that such party did not receive the benefit of the services in question. Such legal principle is in conformity witharticle 804 of the Federal Labor Law (Ley Federal del Trabajo) which states the principle employer has the obligation of maintaining documents relatedto the labor relationship and work condition, so that the supposed beneficiary of the services would not have any evidence from which it could beinferred that the employee was providing his or her services. The case decision was sent for publication in the Judicial Weekly of the Federation onNovember 24, 2008.
