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.
There are prohibitions for registering certain words, figures or three-dimensional forms as trademarks. Sections IVand VI of Article 90 of the Mexican Industrial Property Law contain the following two such restrictions, according towhich the Mexican Industrial Property Institute (Instituto Mexicano de Propiedad Industrial or IMPI) will denyregistration: (i) those “words, figures or three-dimensional forms that, considered along with their characteristics, aredescriptive of products or services sought to be protected as a trademark,” including “descriptive words or indicatorsthat in commerce serve to designate the nature, quality, quantity, composition, destination, value, place of origin ofthe products or period of production,” as would be the case with words such as SECADO RAPIDO (FAST DRYING)(for paints), SUPER FLEXIBLE (for tooling), DURABLE (for durable products); and (ii) “translations from otherlanguages, creative spelling variations or non-registrable artificial word constructions,” as would be when using thewords BREAD or BRED (for food products) or FAST DRYING (for paints). The cases to which these restrictionsapply apply are many and varied, as it is not uncommon for persons to pretend to register trademarks that eitheridentify the products or services that such trademarks apply to, sometimes using variations in either Spanish spellingor using a foreign language or creative variations thereof. Sometimes, an IMPI examiner who is not familiar with aforeign language being used may grant a registration to one such trademark, in which case such is subject tonullification as having been granted against the terms contained in applicable Mexican law. Therefore, it is importantto undertake an analysis of the descriptiveness of a trademark, notwithstanding in what language it may be presented,to avoid trademark registration proceedings that may be denied or easily nullified in the future.
Companies required to audit their financial statements through an authorized public accountant should keep in mindthat, in conformity with the new provisions established in Article 32-A, Section I of the Federal Fiscal Code (CódigoFiscal de la Federación) in certain circumstances taxpayers are now allowed to opt out of the obligation of havingaudited financial records. Certain taxpayers may elect not to have their financial statements audited, so long as theymake such election on their annual Mexican Income Tax (ISR) return for the fiscal year such election applies. Theoption must be exercised within the time period established in Mexican law for filing annual ISR returns. In addition,taxpayers electing not to have their financial statements audited are obligated to file, during June, 2011, via theInternet, the information contained in Annex 21 “Alternative information to audit” (“Información alternativa aldictamen 2) in correct form. Such Annex was published in the Official Journal of the Federation on December 17,2010. If taxpayers fail to make the election within the time period mentioned or do not complete filing of theinformation referred to above, such taxpayers will be obligated to have their financial statements audited for taxpurposes in accordance with applicable Mexican tax law. This option does not apply, among others, to legal entities authorized to receive donations, those merging or spinning off, those in liquidation or to be liquidated and those thathave opted to voluntarily dictaminate their financial statements.
Mexico’s Supreme Court of Justice (Suprema Corte de Justicia de la Nación or SCJN) recently published in theJudicial Weekly of the Federation case decision number 1a./J.65/2010, entitled “Promissory Notes. The requirementto establish place of execution, according to the terms of section V of article 170 of the General Law of CreditInstruments and Transactions, is satisfied when a federal state within the Mexican Republic has been designated asthe place such promissory note was created.” In its decision, the SCJN held, contradicting prior lower court decisions,that insofar as the place of execution is designated as any federal state, for purposes of the formal requirement ofindicating the place of execution of a promissory note, such requirement is thus fully satisfied. The above implies thefederal nature of the issue, given that any federal state may be a “place,” especially when throughout the MexicanRepublic promissory notes are governed by the federal General Law of Credit Instruments and Transactions and, ifnot applicable, by special commercial laws and, finally, if neither apply, by the Federal Civil Code, all of which arefederal in nature.
On December 24, 2010, Mexico published important amendments to the Decree for the Development of theManufacturing, Maquiladora and Export Services Industry (IMMEX Decree) in the Official Journal of the Federation(Diario Oficial de la Federación or DOF). Among other important points, the amendments eliminate the ALTEX andECEX Decrees, establish a new definition for the concept of “maquila operations,” as well as provide new causes forcancellation and suspension of IMMEX programs. The IMMEX Decree amendments will become effective 90 daysfollowing their publication in the DOF (except for the definition of the term “maquila operations,” which becameeffective January 1, 2011), and apply to all companies operating under the IMMEX program. Such companies shouldcarefully review how the changes could potentially impact their operations. For more details on the changes, we referyou to the article prepared by Cacheaux, Cavazos & Newton (CCN) and published at the websitewww.mexicanlaw.com
