Use of Symbols and Elements that Cause Confusion Are Considered Unfair Competition

November 17, 2010
Use of Symbols and Elements that Cause Confusion Are Considered Unfair Competition

Since 2006, Mexico’s Industrial Property Law (Ley de la Propiedad Industrial) has provided, in article 213, sectionXXVI, protection to the so called “trade dress.” In this manner, the law provides that the “use of a combination ofdistinctive symbols, operative elements and images, which allows for equal or similar products or services to beconfused with others protected by this Law and by their use cause or induce confusion, mistake or deceive the generalpublic, for having believed or assumed the existence of a relationship between the owner of protected intellectualproperty rights and unauthorized users,” is considered to be an administrative violation. Therefore, a party is subjectto penalties in Mexico if such party uses a “similar” mark to another registered mark, even if such party couldindependently argue and determine that such does not cause confusion with another registered mark, but who at thesame time uses such mark in images and in an operative form that confuses consumers (what in some countries isknown as “trade dress”). The foregoing is based on the referenced article in the law, which characterizes such conduct as “unfair competition” and establishes that “the use of such operative elements and images in this manner constitutesunfair competition according to the terms of section I of this article,” and section I provides that “ any act that iscontrary to the proper use and custom in industry, trade and services implies unfair competition and shall be subject tothe matters regulated by this law,” which is also considered to be an administrative violation of Mexican intellectualproperty law. In conclusion, the use of combinations of distinctive symbols with images and operative elements inMexico, which then cause confusion to the general public, is considered to be unfair competition and is subject tolegal penalties.

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