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As of January 2012, a database was created, to be administered by the Customs General Administration, whereIntellectual Property rights owners may register their trademarks that are already registered in Mexico. This database is intended to be an additional instrument to combat piracy in Mexico. The impact on trademark owners and consumers, when products are imported to Mexico bearing registered trademarks without proper authorization, is significant, including, of course, the costs arising from the prosecution of offenders once the products have entered the country, making this new instrument an effective tool intended to prevent these wrongful imports before they take place. For such purposes, companies or owners of registered trademarks inMexico may voluntarily opt to register with the new database, allowing for quicker preventive seizures of such merchandise and the initiation of the corresponding legal actions. The requirements that must be complied with to register in the new database are simple and include the following: a) registry number, name (if applicable),logo (if applicable) and term; b) general information as to the trademark owner and its legal representative inMexico; c) import/export tariff classification, detailed description of the merchandise, including specifications, technical characteristics and other data that allow its identification; d) name, business or corporate name andFederal Taxpayer Registration (RFC) of the importers and distributors or authorized licensees, if applicable; e)port of entry and period when the legal merchandise normally enters the country; and f) photographs of the merchandise and, if applicable, its packaging design. As a result of this registration, the customs authorities can identify with greater ease whether the merchandise that is to enter the country is authentic and authorized and can immediately inform the corresponding authorities and legal representatives of the trademark owners of the potentially wrongful act. Without a doubt, this is a tool that trademark owners in Mexico should be aware of, the same which will be beneficial in the fight against trademark piracy, while preventing contentious proceedings over trademarks already sold and marketed in Mexico.
The Federal Labor Law establishes that the individual employment agreement, regardless of its form or denomination, is that by which a person agrees to provide another with personal subordinate work in exchange for the payment of a salary. Therefore, the principal elements are subordination and economic dependency. The Federal Labor Law (LFT, for its acronym in Spanish) establishes that employment relationships may be for an indefinite term (permanent) or temporary, pursuant to which individual employment agreements may only be of three types: (i) for specific work (temporary agreement); (ii) for a definite time period (temporary agreement); and (iii) for an indefinite time period (permanent agreement). The agreements normally executed between companies and their employees are for an indefinite time period and those for specific work or a defined term are only executed on an extraordinary basis. It should be noted that upon executing agreements for specific work or definite time periods, companies should be very careful as a result of the complicated requirements that must be complied with and due to the specificity required with respect to their content. The designation of specific work in an individual work agreement may be stipulated only when required by the nature of such agreement; therefore, in order to execute an individual employment agreement for specific work, it is essential to specify the following with precision: (i) the work that the temporary employee will perform, meaning the scope of such; and (ii) the approximate duration of such project and during what phase the intervention of such employee will be necessary. Furthermore, in accordance with the LFT, the individual labor agreement for a definite term may only be executed in the following events: (i) when required as a result of the nature of the work that will be provided; (ii) when the purpose is to temporarily substitute another employee; and (iii) in the event of employment requiring a special skill (e.g. musicians, actors and athletes) and seasonal employment that is necessary for a determined period during the year (e.g. in department stores when personnel is hired for the month of December as a result of the Christmas festivities). The LFT establishes that in the absence of an express stipulation in an individual employment agreement, the employment relationship will be considered one for an indefinite time period. Furthermore, if the individual employment agreement does not provide for a temporary duration, theagreement will be understood as one executed for an indefinite or undetermined time period. Given theforegoing, it is very important to consider that once the employee begins the provision of services, there exists anemployment relationship and, as a result, a series of obligations and reciprocal rights between both parties,independent of whether or not an individual employment agreement exists. In conclusion, it is important to takeinto account that the employment agreement is not a suitable means of proving all conditions of employment, butdoes serve as an efficient means of proof when combined with other evidence in the event of a conflict before thelabor authorities, especially since the LFT establishes that the employer is required to maintain a copy of theindividual employment agreement and prove the employment conditions of its personnel.
On October 5, 2011, the Second Chamber of the Supreme Court of Justice of the Nation (SCJN, for its acronymin Spanish) approved court opinion 2a./J. 167/2011 (9a.), titled; “Federal Electricity Commission: The paymentnotice issued for the provision of electricity does not constitute an act of authority for purposes of theadministrative appeal or an administrative lawsuit before the Federal Tax and Administrative Justice Tribunal.”In the previously mentioned opinion, published in the Weekly Federal Court Report in January 2012, the SecondChamber deviates from the criteria established in opinions 2a. CXXX/2010 and 2a. CXXXI/2010, whichdetermine that an administrative appeal provided for by the Federal Law of Administrative Procedure shouldproceed in accordance with the payment notices issued for electricity services provided by the Federal ElectricityCommission (CFE, for its acronym in Spanish). According to the Second Chamber, the previous is true, giventhat the legal relationship existing between the individual user of electricity services and the CFE does notconstitute one of authority or subordination but rather a relationship of cooperation between such entity and theindividual, deriving from the voluntary agreement where both parties acquire reciprocal rights and obligations,without the nature of such relationship being changed by any defense asserted against acts by the CFE, such asthe payment notice issued for the provision of electricity services. The result of this opinion is that individualsand entities may no longer appeal the payment notices from the CFE by administrative appeals or lawsuits. As aresult of this new court opinion and given previous opinion number 2a./J.112/2010 titled “Federal ElectricityCommission. The payment notices for electricity services, including those with a disconnection of serviceswarning, is not an act of authority for purposes of an amparo lawsuit,” it will be extremely complicated andcostly for users of electricity services to challenge such acts.
On February 8, 2012, the decree amending Article 4 of the Constitution was published in the Official Journal ofthe Federation, amending the fifth paragraph and adding a sixth paragraph to said Article and establishing thefollowing:All persons have a right to access, usage and sanitation of water for personal and domestic consumption ina sufficient, safe, acceptable and affordable manner. The State shall guarantee this right and the law shalldefine the bases, support and arrangements for the access and equitable and sustainable use of waterresources, establishing the participation of the Federation, the state and municipalities, as well as theparticipation of the citizens, to achieve those ends.The amendment elevates the individual right of access to water in a sufficient capacity and quality for personalconsumption to a constitutional level and further requires the authorities to make efficient and sustainable use ofwater resources. The Transitional Third article of the referenced decree establishes that Congress shall issue anew General Water Law within a term not greater than 360 days, pursuant to which we should expect a draft ofthis new law and its subsequent promulgation, which will need to be carefully reviewed to see how the new rightto potable water for human consumption and its efficient and sustainable use will be regulated with respect toindividuals and the three levels of the government. The municipal water operating organisms have alreadymanifested their concern with respect to the amendment given that they wish for clarification indicating that the right to water will not be gratuitous, because in order to guarantee such a right, it is necessary to carry out costlywater works, which may on occasion lead to high costs for such municipal organisms. The prior concerns resultfrom the theory that as a result of the new right, an individual may demand that authorities provide potable waterutility services and, if such service is denied, request the protection of the Federal Courts by means of an amparoaction, alleging that such individual is willing to pay for the service once connected (with nothing being said as tothe infrastructure work to achieve the connection). It will be interesting to see how this new right to water accessby individuals develops and its interpretation and application by the Courts.
