CCN MEXICO REPORT

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Issue #
76
 – 
April 2010

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Constitutional Amendment Pertaining to Collective Lawsuits

April 16, 2010

Mexico’s Lower House of Congress has approved a constitutional reform, which was previously approved by Mexico’s Federal Senate, which adds a third paragraph to article 17 of the Political Constitution of the United Mexican States establishing a constitutional level known as “collective actions” in Mexico. The paragraph that will be added to the Constitution contains the following text: “Laws that regulate those actions and procedures for the adequate protection of collective rights and interests, as well as measures that may be taken by individuals and their organization for the defense of same.” The reform allows for collective actions and will provide guidelines for its regulation and procedural implementation in Mexico, as has been done in other countries such as the United States of America, the United Kingdom, Portugal, Spain, Brazil, Uruguay, Argentina and Venezuela. Collective actions in Mexico will now be parallel to those called “class actions” that exist in other countries under the Anglo-Saxon or “common law” tradition, which seek to aggregate the rights of a group of persons for their defense through collective actions and procedures. The various rights of members of a group will be considered collective in a strict sense for individuals in a collective group according to a determination of the propriety of a collective action, and whether or not common circumstances exist to permit linking all the individuals together for their common protection or defense. In Mexico, the constitutional recognition of class actions will have an impact in various areas such as consumer protection, environmental protection, economic competition, urban development, Mexican cultural property and public safety, among others. This is a far-reaching reform, but it will not enter into force until two-thirds of the legislatures of Mexico’s states have approved the reform and such has been signed by Mexico’s president and published in the Official Journal of the Federation. Upon any future approval, Mexico’s Congress will need to adopt new regulations accommodating this new constitutional precept.

Recent Jurisprudence – Registration of Mixed Trademarks

April 16, 2010

On March 24, 2009 the Second Chamber of Mexico’s Supreme Court of Justice (Suprema Corte de La Nación or SCJN) approved case number 2a./J.41/2010 under the heading “Trademarks. When proposed in a mixed form (name, design and three-dimensional form) and such latter form is not subject to registration by individuals, such circumstance impedes the registration of trademarks.” In its decision, the SCJN held that a consistent interpretation of Mexico’s Industrial Property Law and Regulations means that a party interested in registering a trademark has the right to elect the type of mark for which he or she seeks protection of their products, whether such is a name, unnamed, three-dimensional or mixed, with the court stating that in cases where the interested party desires to register a mixed trademark, the three-dimensional element must be examined separately from the other remaining elements of the mark so that the trademark authorities may, in their judgment, determine that three-dimensional form trademarks may not be registered by individuals, which would mean that individuals could not register a mixed trademark that includes a three-dimensional form. Please note that this case decision has yet to be published in the Judicial Weekly of the Federation.