Descriptive Trademarks

September 12, 2009
Descriptive Trademarks

All trademarks, whether such be word or design in nature, consist of a design, three dimensional figure, etc. that is subject to registration, but provisions in article 90 of the Mexican Industrial Property law prohibit registration of some distinctive marks. Among others, “denominations, figures or three dimensional forms which, considered along with their other characteristics, are descriptive of the products or services they seek to protect are prohibited from registration. These include descriptive words or symbols used in commerce to designate the type, quality, quantity, ingredients, destination, value, place of origin or time of production of the products.” This prohibition applies at all times, given that in many different cases trademarks are sought in order to be identified with the products or services to which they apply, providing a greater opportunity for market penetration. However, it is important to note that no legal provisions prohibit the registration of “evocative” trademarks, which is to say trademarks that suggest the characteristics of the products or services without describing them because even if it is not permitted to describe such through the registration of a trademark, the “evocative” mark can evoke or suggest the idea of a product or service to the person seeing such mark, and thus lead to a mark this is subject to registration.

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