Many foreign companies have their marks duly registered in Mexico; notwithstanding such, the lack of use of such trademarks by their owners or by an“authorized user” may cause the cancellation of such trademark’s registration if any third party petitions for such cancellation to the Mexican IndustrialProperty Institute, pursuant to the provisions set forth in article 152 of the Industrial Property Law. The effective use in commerce of trademarksregistered in Mexico is done by licensees who have an agreement authorizing them to use such trademarks, but such agreements are often notregistered with the competent authority in Mexico. In accordance to the applicable law, it is necessary for a registered trademark being used incommerce by a licensee (either a company belonging to the same interest group or any other licensee) pursuant to a duly executed license agreement toregister such license agreement with the appropriate authority in order to avoid the cancellation of the trademark registration due to a third party’spetition to cancel such trademark for lack of use.
On February 23, 2009, the Department of Economy published in the Official Journal of the Federation the “Ruling by which the ‘Made in Mexico’logo is displayed and in which the requirements to receive authorization of its use are set forth.” The new logo maintains the graphic representation ofan eagle and the text “Made in Mexico,” yet the new logo seeks, as stated in the Ruling, to create a more amicable and attractive image. In terms ofcolor, size and other specifications for its use, the new Ruling still makes reference to the existing Manual of Graphic Identification. The Ruling,which is already in effect, abrogates the prior corresponding ruling, dated April 26, 2004, without affecting the rights of those that already use the priorlogo on their products. The Ruling provides for the necessary electronic means to facilitate the submission of applications and the issuance ofresolutions concerning requests to authorize the use of the new logo. The Department of Economy will remain responsible for the authorization of thelogo’s use through the General Bureau of Standards and/or such department’s branch offices or auxiliary branch offices. The authorization of thelogo’s use will continue to be limited to those goods completely produced or manufactured within the Mexican territory, either as the result oftransformation of raw materials or the sale of goods in their natural state.
Mexico’s Federal Labor Law (LFT) provides that the indemnification to which terminated employees are entitled must be calculated in terms of thedaily integral salary (SDI). Thus, the calculation of severance indemnification, which includes three months of pay, twenty days of pay per year ofemployment and salary accrued between the date of termination and the date on which the severance indemnification is settled, is based on the SDI.Article 84 of the LFT provides: “Salary is composed of daily cash payments for services rendered, bonuses, wages, accommodations, vacation bonus,commissions, in-kind fringe benefits and any other amount or benefit given to the employee for such employee’s work.” The SDI provided for in theLFT must not be confused with the SDI set forth in the Social Security Law, because these are not the same concepts. To determine the SDI, theemployee’s base salary must be ascertained and added to, on a daily and pro-rated basis, any other amounts of compensation given to the employee,such as Christmas bonus, vacation bonus, commissions and contributions to the employee’s savings fund (only the amount of the employer’scontribution). Nevertheless, the applicable general rule to determine whether a compensation item should be included in the employee’s integral dailysalary is that such compensation must be paid directly to the employee in consideration for that employee’s work. In this sense, life insurance andmedical benefits are excluded from the SDI to the extent that the employer pays the corresponding premiums to the insurance company and not theemployee directly. On the other hand, SDI does not include overtime, unless such overtime accrues in a continuous and uninterrupted manner;vacation time is also excluded, since it is paid without the employee providing any services during such time off. Finally, work tools, such as anautomobile, cellular phone or computer are not considered part of the employee’s salary so long as such tools are delivered to the employee with theemployee’s acknowledgement that such goods are tools for the employee to provide services to the employer. Without such acknowledgement fromthe employee on the characterization of work tools, Mexican labor authorities may consider such tools as employee benefits, in which case they wouldhave to be included in the calculation of salary and could significantly increase the cost of a severance payment.
The First Chamber of Mexico’s Supreme Court of Justice (SCJN) recently published in the Weekly Judicial Journal of the Federation civiljurisprudence number Ia./J.95/2008 under the heading Commercial Bond. In order for an action for collection to proceed, the surety company mustshow it gave notice to the obligor, or the applicant, joint obligors or indemnitors of the surety company, concerning a claim for payment made by thebeneficiary of such bond. The highest court of the nation held that a surety company must establish that it provided notice to the obligor, or, as the casemay be, to the applicant, joint obligors or indemnitors of the surety company, of a beneficiary’s claim on such bond before moving forward with anaction for collection. Such notice allows obligors, or whichever party contracted an obligation through such bond, to intervene in the correspondingproceedings and to provide them an opportunity to assert their rights and interests as they deem appropriate. To support its holding, the SCJNexplained that in the absence of notice to obligors with respect to claims made by beneficiaries on bonds, such claims may result in the inappropriatecollection of bond payments, either because the obligors may have already met their obligations guaranteed by the bond or because payment on suchbonds would not be justified.