Mexico’s Industrial Property Law has for many years contemplated the various violations for which one could besubject to sanctions in relation to the use of intellectual property rights of third parties. The most typical causesseem to always be related to the improper use of patent or trademark rights that have been duly protected throughlegal registration with Mexico’s intellectual property authorities. Article 213 of the Intellectual Property Lawestablishes 27 different bases for administrative violations. Within such list is section XXVI, which sanctionsparties for unfair competition in using distinctive symbols that cause confusion, mistake or deceit of the generalpublic with respect to equal or similar protected goods and services. In this way, duly registered intellectualproperty rights are protected, and not only “equal” or “similarly in grade of confusion”, as was the case years ago,except for those that may create confusion in the mind of the general public. As such, one may avoid incombination of images, operative elements and/or distinctive symbols (“trade dress”) which could causeconfusion with respect to any protected good or service.
With an important constitutional amendment that entered into force in 1995, Mexico’s Supreme Court (SupremaCorte de Justicia de la Nación or SCJN) underwent important changes. Such amendment not only reduced thenumber of justices from twenty-four to eleven, but also provided the court with important new authority toresolve cases involving unconstitutional actions and constitutional controversies. The reform also changed theterms of the SCJN justices, which now run for fifteen years, and provided a mandatory retirement age. Theconstitutional amendment also put in place new procedures for choosing SCJN justices. In conformity with theMexican Constitution, the president submits a slate of candidates to the Federal Senate, which then elects andnames these new justices. Justices Mariano Azuela and Genaro Gongora, both former chief justices of the SCJN,recently concluded their terms in November, and the Senate received from the President two slates of candidateswith which to proceed in the substitution process. The slates of candidates presented were interesting. One slateof candidates was made up of three individuals currently working in the Mexican federal judiciary, while theother slate was comprised of two university researchers and a practicing litigation attorney with a prestigiousacademic record. The signal given by the president in submitting such slates of candidates is that he deemed itadvisable for the SCJN to have justices coming from different backgrounds in order to give the court a variety ofviewpoints and experience. The Senate received input from its committees, and from antiparliamentary groups, on all six of the candidates. The decision of the full Senate resulted in the appointment of Luis Maria AguilarMorales, an expert in jurisdictional procedure issues, but also well-versed in administrative and budgetary issues.The second justice named was Arturo Zaldivar, an acclaimed litigator in constitutional amparo lawsuits and anactive member of the Mexican Bar Association, university professor and recognized researcher. Arturo Zaldivaris a graduate of the Escuela Libre de Derecho in Mexico City, where he obtained his law degree, and the LawFaculty of the Universidad Nacional Autonoma de Mexico (UNAM), where he obtained his doctorate degree.
Recently the Second Chamber of Mexico’s Supreme Court published in its Judicial Weekly of the Federation(Semanario Judicial de la Federación) case decision number 2a./J.149/2009 under the heading “MercantileCommissions. Criteria to determine the existence of a labor relationship”. In this regard, Mexico’s highest courtreiterated the legal criteria that subordination is a characteristic element evidencing a labor relationship. In thismanner, the Supreme Court held that the commission agency agreement will be considered as independent, andnot one creating an employment relationship, when the following elements are met: (i) the commission agent hasadequate personnel and resources to carry out its activities; (ii) The commission agent is free to set his own hoursand is not obligated to personally fulfill the agency services; and (iii) the agreement does not confer exclusivity toany of the parties and the activities of the commission agent are carried out in an independent manner.