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The purpose of registering distinctive trademarks is fundamentally to stop others from using such marks, which is to say to prevent others from using the same orsimilar trademark in Mexican territory. However, Mexican Trademark law provides for three instances in which trademarks may not be opposed, even if they areregistered. Such instances include the following: 1. – The trademark does not affect third parties who, in good faith, exploit the same or a similar trademark prior tothe date the registered trademark was applied for or prior to the date of first use declared by the trademark’s owner. This highlights the value that Mexican law grants to prior use of a trademark. 2. – Exclusive rights for exploitation of a trademark may not be claimed against those who use, commercialize or distribute under a trademark, if the trademark was legally introduced in Mexican territory by the holder of the registration or one who has been granted a license to use such trademark in Mexico. This is the case of parallel importations, in which legitimate trademarked products are imported and then commercialized or distributed by a third party that is not the owner of such trademark. Regulations on this point indicate the requirements that must be met in order for a product to be considered legitimate, which include: (a) introduction of the products into Mexico’s stream of commerce by a person who is the holder or licensee of a registered trademark; and (b) the holders of the mark registered in Mexico and abroad are, on the date that the importation occurs, the same person or members of the same economic group with common interest, or licensees or sub-licensees. 3. – Finally, one may not use a trademark against third parties, whether individuals or entities, if the trademarked words form part of such third party’s name or corporate name that is used to create or distribute products or services, so long as such use is in a customary form and has characteristics that may be distinguished from similar names.
Effective April 29, 2010, new rules and guidelines governing immigration controls on foreigners entering Mexico became effective, along with a publication of theNational Immigration Institute’s new manual of criteria and immigration procedures. Among other changes, such rules provide for: (i) the creation of an ElectronicImmigration Procedures System (Sistema Electrónico de Trámites Migratorios or SETRAM), which will allow interested parties to login in into such system andfollow up on various procedures using the Internet; (ii) the establishment of a new category of “generic activities,” which will permit foreigners working or carryingout business in Mexico to do so without any links to a specific employer; and (iii) creates a new immigration form, the Multiple Immigration Form (Forma MigratoriaMúltiple or FMM). The FMM allows foreigners doing business in Mexico to remain in the country for a maximum of 180 days on business visits, technical visits andtourism stays, among others. Furthermore, the FMM will allow foreigners who want to enter Mexico to live and work under the a FMM, and then convert their statusto a FM2 or FM3 visa. For such purposes, they will have thirty days after entering with an FMM form to appear at a regional office of the National ImmigrationInstitute that corresponds to their domicile in order to apply for a FM2 or FM3 visa. Another relevant change is that, effective July 31, 2010, Mexican consulates maynot issue FM3 immigration documents under any circumstances. Current FM3 immigration forms, which are in the form of a booklet, will be valid for their currentterm, but must be substituted at the time one applies for a renewal or change.
A Justice of Mexico’s Supreme Court, Jose de Jesus Gudiño Pelayo, recently died unexpectedly, thus, creating a vacancy that will need to be filled in the near future. Justice Gudiño Pelayo was appointed to the Supreme Court following constitutional reforms in 1995 when the Supreme Court changed from 24 to 11 members and received its authority to resolve constitutional controversies and actions alleging unconstitutionality. Such reforms have tended to convert Mexico’s Supreme Court into a Constitutional Court. Justice Gudiño Pelayo distinguished himself as an apolitical judge, with independent and juridical conviction. His individual votes showed this judicial temperament. Remaining outside of political affairs, his career was always linked to the judiciary and legal academia. An author of various books on human rights and technical issues, especially those related to the Mexican amparo (constitutional writ of appeal) procedure, he enjoyed well-deserved professional, judicial and academic respect. The replacement will be designated through a process that is similar to that used in the U.S., in which the President and the Mexican Senate will participate. In Mexico, the President presents a slate of three candidates to the Senate from which such legislative body elects the new Justice for Mexico’s Supreme Court. Candidates must appear before the Senate before the election, and a quorum of at least two thirds of the Senate must be present. The Senate has thirty days to make its designation, and if such period runs without the Senate selecting a new Justice for Mexico’s Supreme Court, the President may then make the designation from the three persons who comprise the candidate slate. If the Senate rejects the slate, the President must send another slate of candidates. Is such new slate is rejected, the President may directly appoint the new justice from the three candidates listed on the slate. The justice who is selected must then take an oath before the Senate to faithfully uphold the Constitution. The question presented in Mexican legal and political arenas whether the new judge who will replace Justice Gudiño will come from the judiciary, academia, the political world or a professional practice. In Mexico, justices of the Supreme Court are designated to occupy their posts for a term of fifteen years, which contrasts with the U.S. practice of designating federal judges for life.
On September 23, 2010, Mexico’s Department of the Economy (Secretaria de Economía) published a decree amending regulations governing Public Registries ofCommerce (Registros Públicos del Comercio). The purpose of such amendment is to create a Single Registry of Guaranties over personal property (or RUG by itsinitials in Spanish) within a separate section of the Public Registry of Commerce. The RUG will be public and available every day of the year. Entries will be made inelectronic record files of parties granting security interests in personal property. In this manner, security interests in personal property, including pledges withouttransfer of possession, guarantees based on factoring loans, industrial mortgages, security interests in aircraft and vessels, reservations of ownership clauses in thepurchase and sale of identifiable personal property, among others, are covered in the new procedures. The RUG will show security interests in personal propertycreated after the effective date of the decree.. This means that security interests granted before the RUG’s initial date of implementation will not necessarily appear in the RUG. As such, creditors holding security interests in personal property prior to the RUG’s beginning of operations should exercise caution and verify if theirsecurity interests in personal property has been included into the new RUG system.
Recently, Mexico’s Supreme Court of Justice (Suprema Corte de Justicia de la Nación or SCJN) published, in the Judicial Weekly of the Federation, case decisionnumber III.2o.C.J/29 under the heading, “Assignments of rights to third parties. Notice to the debtor is not a necessary requirement for such assignment to take effect.”In this case, the SCJN confirmed that, as provided in articles 2030 through 2034 and 2036 of the Federal Civil Code, “notice of an assignment of rights does not constitute a transfer, so that the only consequence of the omission of such notice is that the debtor will be released from its obligation to pay the creditor by paying the original creditor to the detriment of the assignee.” In this sense, Mexico’s highest court deems a notice of assignment of rights to a debtor as an act that benefits the assignee of the original creditor and not the debtor because a debtor’s lack of a notice implies that such debtor only has an obligation to pay the original creditor to the detriment of the assignee, who would not receive payment on the rights assigned from the assignor and, as a consequence, would have to pursue its rights against the assignor or the original creditor.
