Trademarks Not Subject to Registration

May 4, 2011
Trademarks Not Subject to Registration

Article 90 of the Mexican Industrial Property Law establishes various restrictions as to trademarks. These restrictionsinclude the prohibition of the use within trademarks of codes of arms, flags or emblems of any country, officialsymbols or seals adopted by a state, and names or graphic representations of official insignia, medals or other suchawards. Inclusively, this law prohibits the imitation of previously registered trademarks which are descriptive of theproducts or services sought to be covered, and imposes other similar restrictions. In this instance, we wish to highlightprohibitions on registering trademarks that are “translated from other languages, creative spelling variations of pre-existing marks, or artificial constructions of non-registerable words.” It is understood that international marketingspecialists must employ their creativity to ensure that the general public can easily identify products or services beingsold by their corresponding trademark. However, while this creativity is usually the key to a successful trademark, itis not acceptable when utilized to manipulate applicable legal provisions and is the reason why these restrictions exist.When one is told that a trademark cannot be registered under a particular name as such is merely descriptive orbecause it imitates another mark, human ingenuity immediately sets in to develop another trademark which may notappear to violate any prohibition at first glance. Many times this is inadvertently achieved by translating suchtrademark to another language or finding a creative spelling variation for the mark. Consequently, it is due to thesespecific reasons that the aforementioned restrictions in Mexican Industrial Property Law were developed in order tostrengthen intellectual property law and to ensure that the restrictions it imposes on trademark registration are noteasily bypassed by the use of creative techniques.

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