Mexico’s Industrial Property Law (Ley de la Propiedad Industrial) allows trademark owners who have previously registered their marks outside of Mexicoto claim protection of such marks, and potentially obtain a nullification of competing marks registered in Mexico. This is important given that non-Mexicancompanies often find that their trademarks that have been previously registered outside of Mexico are not available in Mexico, and that they can potentiallybe subject to lawsuits for trademark infringement for manufacturing, importing or exporting products to or from Mexico. In this regard, the right to claimtrademark nullity for prior use provides that a claim of rights to such must be made within three years after the trademark was registered in Mexico throughpublication in the Official Gazette, which occurs just after the trademark is registered. In cases where the statute of limitations for presenting a nullity claimhas run, the law protects those who have used the mark previously in Mexico and outside of Mexico against claims for trademark infringement, even thoughit may not be possible for the rightful owner of the mark to obtain registration of such mark in Mexico based on trademark nullity because the statute oflimitations has run. Therefore, it is always a good idea for trademark owners to consider registering their marks in Mexico if they plan to use them there, or atleast periodically review if third parties have registered the same or similar marks in Mexico, which can be done relatively easily by searching the database ofthe Mexican Institute of Mexican Property (Instituto Mexicano de la Propiedad Industrial or IMPI).
On February 5 th Mexico’s Department of the Environment and Natural Resources (Secretaría de Medio Ambiente y Recursos Naturales or SEMARNAT)published in the Official Journal of the Federation a Decree Amending and Adding various Provisions regarding the Instructions and Format of the AnnualOperations Certificate for the Annual Report submitted to the Registry of Emissions and Transfers of Pollutants, which has now been implemented inMexico. This measure was adopted in order to provide those establishments that are subject to applicable reporting requirements with a means to submit theirannual reports to SEMARNAT. In the above referenced Decree, SEMARNAT, in addition to amending the Annual Operations Certificate format andcorresponding instructions, establishes that large generators of hazardous waste are obligated to present an annual report concerning their generation andtreatment of hazardous waste, which must be done by means of the Annual Operations Certificate. This requirement also applies to hazardous wastemanagement service providers who carry out activities at collection, reuse, recycling, processing, incineration and treatment centers, as well as deep-injectiontreatment, subsoil contamination, final storage and transportation of hazardous waste. In addition, comments to the Decree provide that the AnnualOperations Certificate must be processed pursuant to the time period and procedures set forth in the Regulations of the General Law of EcologicalEquilibrium and Environmental Protection in Matters related to the Registry of Emissions and Transfer of Pollutants Registry and with the Regulations of theGeneral Law of Preventing and Handling Hazardous Waste.
On January 7, 2009, Mexican President Felipe Calderon issued the National Decree to Benefit Family Economics and Employment for Family Well Being(the “Decree”). The Decree seeks to protect jobs and support family income. Among other aspects, it extends Social Security coverage to unemployedworkers. Retroactive to January 1 st , employees are entitled to medical and maternity coverage from the Mexican Social Security Institute, which coverage hasbeen extended from two to six months for workers who have lost their jobs, and for their dependents. To pay for the referenced increase in benefits, Mexico’sFederal Government will provide up to 2.6 million pesos. In accordance with the Decree’s provisions, the IMSS will publish specific rules for implementingthe program in the Official Journal of the Federation (Diario Oficial de la Federación), including among others: (i) the extension of the period for preservingthe rights of workers for sixteen additional weeks, on top of the eight weeks prescribed by law, so that those beneficiaries will be insured from January 1 stthrough June 30, 2009, which extension will include medical/surgical, pharmaceutical and hospitalization assistance; (ii) establishing the requirement that theemployees be registered immediately and uninterruptedly before the IMSS for at least eight weeks in order to receive such benefits; and (iii) instructions tothe IMSS Department of Finance to agree with the Mexican Department of Finance and Public Credit on the mechanism to provide IMSS with sufficientresources to pay for the additional cost generated from such extension of medical coverage.
A reform to the State of Nuevo Leon’s Code of Civil Procedure was recently published in the Official Periodical of the State of Nuevo Leon that allowsparties to carry out boundary delimitation proceedings before a notary public, so long as no controversy exists among the neighboring property owners. If anyone of the neighboring property owners opposes the proposed boundary delimitation, the notary public must suspend his or her work so that the case may besubmitted for a corresponding proceeding before Mexican judicial authorities. The boundary delimitation proceeding is necessary when the boundaries of aproperty have not been fixed, or if such boundaries are not exact and must be corrected. Prior to the recent reform, the boundary delimitation proceedingcould be undertaken only before a Mexican judge. The new reform seeks to inject procedural efficiency into real property matters where no conflict amongneighbors exists.
On December 30, 2008 various provisions of the Mexican Commerce Code (Código de Comercio) and Federal Code of Civil Procedure (Código Federal deProcedimientos Civiles) were amended in regard to requirements for recognizing foreign judgments in civil and mercantile cases in Mexico. The amendmentestablishes that “a foreign Judge or tribunal is not competent when, in the legal acts leading to the decision that is sought to be executed, a clause existsproviding for submission of the matter solely to the jurisdiction of Mexican courts”. This reform seeks to provide definitive guidance on the execution ofjudgments issued by foreign courts (principally from the United States of America), based on any point of contact, in order to understand and resolve suchmatters, notwithstanding the fact that the parties in the dispute have submitted themselves to the jurisdiction of Mexican courts and, later, one of the partiesseeks to execute the judgment in Mexico. It is important for litigants in these disputes to decide in which country to file a given case in order to secure theexecution of the judgment resulting from such case.
The Second Chamber of Mexico’s Supreme Court recently approved case decision 2a./J.197/2008 under the following caption “Verification of Merchandisein Transport for Customs Purposes. If the authorities decide to transport goods to a determined site for further inspection, the authorities must prepare awritten record at the time such goods are transported for inspection”. In its holding, Mexico’s highest court stated that for the purpose of guaranteeing duerespect of applicable law, the authorities must prepare a written record with timely verification that they have noted the circumstances of the motortransportation, as well as the time and place where the facts took place, without prejudice to the fact that the inspection will be suspended until the goodshave been transferred to a tax bonded warehouse (recinto fiscal), where the inspection will take place as quickly as possible to determine whether any furtherproceeding must be undertaken. Notwithstanding the above, it may not always be possible to prepare a written record detailing irregularities that may giverise to a customs proceeding at the time the existence of such goods is discovered, in which case such written record must be prepared at the time thecorresponding inspection is carried out.