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The Mexican Intellectual Property Law defines a Commercial Message as “phrases and sentences intended tomake public announcements on business branches or trade negotiations, industry or services, products orservices, for purposes of making a distinction from similar ones”. Like trademarks, commercial messages aredistinctive signs that help distinguish products and services from those offered by competitors, nevertheless, theyoften receive less attention than trademarks. Commercial Messages are often confused with “slogans” in themarketing of specific products or services in disregard of the potential that such commercial messages may haveto penetrate a market effectively to the point of becoming the most distinctive element of a product or service.Thus, it is highly recommended that a company or business reviews whether they have such commercialmessages, and if so, whether such commercial messages are protected under applicable law. In general terms,commercial messages are subject to legal provisions that are equivalent to those that apply to trademarks, such asthe registration process (filing with the Mexican Institute of Intellectual Property), protection (can restrict thirdparties from using a phonetic, grammatical and conceptual imitation) and term (10-year renewable terms).
On September 9, 2009, the Official Newspaper for the State of Nuevo Leon published the new UrbanDevelopment Law for the State of Nuevo Leon (“UDL”), which will become effective on November 8, 2009. TheUDL provides, among other new provisions, the following: i) Dedicated land: the UDL preserves the concept ofdedicated land for the development of real property as well as the construction of real property on 7% to 17% ofsuch dedicated land outside the limits of a subdivision, depending on the existing land use of the dedicated land.Nevertheless, the UDL mandates that 17% of dedicated land must be subdivided with constructions with morethan 5,000 square meters each, independently of the existing land use. The dedicated land cannot be subject toencumbrances such as electric utility easements and other encumbrances. Federal courts in Mexico have declaredthe unconstitutionality in the imposition of encumbrances on dedicated land; ii) the UDL orders all governmentauthorities with subject matter jurisdiction on urban development to prepare a Risk Atlas that identifies risk areason which development will be precluded if risk on such areas cannot be mitigated. Government authorities willprepare the Risk Atlas; iii) in the event that land is declared as a territorial reserve, the State or the municipalitiesmust acquire such land within the next 5 years after such declaration is made in the urban development plan. Private individuals, however, may not use streets and other rights of way in such territorial reserves even after 5years after the corresponding declaration, thus affecting the property rights of private individuals; and, iv) lightindustry is defined as industry that does not handle hazardous, inflammable, corrosive or radioactive materials,nor produce flashing lights, vibrations or noise that exceed the limits set forth by the Official Mexican Rules ineffect without the use of special equipment; electricity consumption that does not exceed 10 Kvas and no railroadconnection into the facility. Industries that do not fall into the definition of light industry will be deemed as heavyindustry. It will be necessary to review the criteria used to implement such law together with the urbandevelopment plans in order to determine the scope of this deficient definition.
In order to support Mexico’s final automotive assembly industry, the Department of the Economy proposed aseries of amendments to the Decree for the Support of the Final Automotive Assembly Industry’sCompetitiveness and for the Stimulus of the Domestic Automobile Market (“Decreto para el Apoyo de laCompetitividad de la Industria Automotriz Terminal y el Impulso al Desarrollo del Mercado Interno deAutomóviles”) or Automotive Decree. The Automotive Decree, published on December 31, 2003, providesincentives to foreign automotive assembly companies operating in Mexico, so long such companies meet certaininvestment requirements, notably the annual production of at least 50,000 units within Mexico in order tomaintain such incentives. The proposed amendment to the Automotive Decree, which is currently under publiccomment before the Federal Commission of Regulatory Improvement (“Comisión Federal de MejoraRegulatoria” or “COFEMER”), proposes to renew the registration to such incentive program for companies thatproduce new light vehicles that meet, among other requirements, a production of 50,000 units or more during anyof the previous 3 years of the year on which a registration renewal is sought, and provided that such company hasnot suspended its manufacture of vehicles in Mexico for more than 3 consecutive months during the previousyear, and that such manufacture in Mexico does not show an annual decline that is larger than the decline incumulative sales of the market where at least 90% of the units produced in Mexico are destined. Furthermore,such company must have manufactured in Mexico 30,000 units or more in the immediately previous year. Theautomotive industry has expressed its approval of such amendment, thus, the expectation is that the ExecutivePower will approve the proposed amendments and announce their immediate implementation in the OfficialGazette of the Federation (“Diario Oficial de la Federación”).
Mexico’s Supreme Court of Justice published recently case decision number 2a./J.93/2009, titled “Tax rule thatgrants benefits to certain taxpayers, excluding other taxpayers that are similarly situated from a legal standpoint. The effect of an amparo judgment ruling its invalidity is that it also benefits the plaintiff.” In this case precedent,Mexico’s Supreme Court of Justice held that constitutional protection of amparo proceedings aimed atchallenging a tax rule that benefits certain taxpayers and excludes others similarly situated, and where there is afinding that there is a violation of equity principles in the challenged law, would extend the same benefits thatsuch specific taxpayers enjoy under such challenged law to the plaintiff. This case decision is relevant becausethe unconstitutionality of a challenged rule will not eliminate the effects of such rule with respect to the taxpayersto whom such rule applies, but will allow a plaintiff to receive the benefits granted under such challenged legaldisposition.
Mexico’s Supreme Court of Justice published recently case decision P./J. 95/2009, titled “Recording Fees.Federal or local laws setting a fee based on the value of the transaction that gave rise to the recording, violate thetax collection principles of proportionality and equity.” In such precedent, Mexico’s highest court holds that feespaid to the treasury of the State are in consideration for administrative services rendered by the government to theindividuals that request such services in accordance with applicable tax collection doctrine and laws. The Courtexplains that such fees satisfy the tax collection principles of proportionality and equity provided in Mexico’sConstitution when: i) there is a reasonable balance between the fee collected and the service rendered; and, ii)those receiving the same type of service are treated equally. Given the above, the Highest Court ruled that thefederal or local laws that set fees for the registration, entry, cancellation or issuance of certificates with legalsignificance or public registry instruments on the basis of a percentage or a factor applied to the economic ormarket value of a transaction violate the tax collection principles of proportionality and equity when individualspaying such fees pay a greater or lesser amount depending on the value of the transaction that gave rise to suchrecording. Thus, such illegal fees lead to a situation in which a service that costs the governmental agency thesame to provide results in different payment amounts of recording fees depending on the value of the underlyingtransaction. This recent case decision opens the possibility to challenge unjustified recording fees set by thevarious public registries across Mexico which base such fees on the value of the transaction and not in terms ofthe cost to render such service.
