Mexico’s Intellectual Property Law (Ley Industrial de Propiedad) provides for many cases in which a trademarkmay not be registered. In this note we highlight those names, three-dimensional figures and forms that are thesame or similar to a mark that the Mexican Institute of Intellectual Property (Instituto Mexicano de la PropiedadIntelectual (IMPI)) considers as, or has declared to be, “notably recognized” or “famous,” with respect toproducts or services. A mark is considered “notably recognized” in Mexico when a certain populace or businesssector of the country recognizes that mark as a result of economic activities conducted in Mexico or abroad by aperson or entity who uses this mark with respect to its products or services through promotional efforts orpublicity of such. This implies that in order to achieve this status or level of recognition, a mark should at least behighly recognized in a specific sector. For example, a mark may be “notably recognized” in the world of aquaticsports, but unknown in other areas. For example, the names “Swatch” or “Lacoste” are highly recognized in theirspecific market segments, but not necessarily in all markets. It is understood that a mark is famous provided that it is recognized by the majority of consumers. Clearly, far fewer marks meet this characteristic of beingrecognized by the majority of the population, as is the case, for example with the names “Coca-Cola” or“McDonalds.” It is noteworthy that in 2005 the Intellectual Property Law introduced a process through which theauthorities may declare the fame or notoriety of a mark by allowing the interested party to employ all evidencethat is necessary to prove such status. The fact that the owner of a brand does not try to follow the establishedprocess to obtain a declaration of fame or notoriety does not rule out that the authorities may independentlyattempt to determine such status; however, obtaining a declaration offers a sense of legal protection for theowner. Many companies with globally recognized marks have slowly obtained declarations of fame or notorietyfor their marks, to the effect that subsequent studies are not necessary (at least during the active period of thedeclaration, which is ten years), which precludes others from registering identical or similar marks. In the case ofmarks that are “notably recognized” this means securing exclusive rights on products or services that belong to arelated market. For “famous” marks, this means securing exclusive rights on any type of product or service.
Although “subdivision” (subdivisión) and “urban development” (fraccionamiento) appear to be similar terms,from a Mexican legal standpoint, they are different. According to the General Law of Human Settlements (LeyGeneral de Asentamientos Humanos), Mexican states have the authority to legislate in the area of humansettlements and urban developments. Consequently, differences between both concepts should be reviewedaccording to the local laws on urban development. Nevertheless, the following provides some of the principaldifferences generally accepted in local laws. Subdivision implies the partition of property into two or moresections, with each of the sections having access to public roads. Each of the subdivided lots must comply withthe minimum surface area established by the urban development plans applicable to such location. Depending onlocal law, the subdivision of real property may trigger the obligation to relinquish or pay for municipal land areas,while some legal ordinances allow for the deferment of this obligation. In subdivisions, there may be a need forinfrastructure for utility services that may be fulfilled by works performed by the particular entity or individualrequesting the subdivision. As a general rule, the requirements and response times to obtain an authorization for asubdivision are shorter than those applicable to urban developments. An urban development implies a division ofproperty which requires the establishment of public access roads, in addition to the establishment of infrastructurefor utility services (water, gas, sewage, electricity, paving, etc.). In this case, developers must assign or donateland to the municipalities and utility entities in order for such municipalities and utility entities to provide theirrespective services to owners of the lots resulting from the urban development project. Various types of urbandevelopments exist, including residential, industrial, commercial or mixed purposes. Each type of urbandevelopment has different specific requirements that apply to it, according to local laws, including those relatedto the establishment of green and recreational areas which, as a general rule, must be assigned or donated to themunicipality. The procedure to authorize an urban development entails compliance with significant requirements,such as road surveys, public comment, the obligation to construct infrastructure improvements for utility services,as well as compliance with particular legal requirements in accordance with the local official urban developmentplan. When analyzing the acquisition of real property, it is important to consider these differences in the duediligence process, in addition to determining the condition and availability of utility infrastructure andcompliance with all legal requirements that apply to land use and the type of development.
On May 27, 2011, a new regulation was published in the Official Journal of the Federation that aims to establishthe procedure to determine and pay the fee known as the “guaranty of no expiration fee” (cuota de garantía de nocaducidad) referred to in the National Water Law (Ley de Aguas Nacionales). The payment of the guaranty of noexpiration fee allows licensees or assignees of national water rights to avoid the termination of the licensebecause of expiration. This permits licensees to maintain their rights to use the volume of water licensed orassigned, or, when applicable, to fully carry out a permanent transfer of water rights to third parties. The newregulation contains the formula used to calculate the guaranty of no expiration fee that the licensee or assignee ofnational water rights may choose to pay in order to avoid total or partial expiration of a license or assignment when such party ceases to operate, use or appropriate all or part of the volume of water licensed or assigned for aperiod of two consecutive years. Such fees may be paid each time any one of the mentioned events occurs. Theperiod of two years shall be calculated from the time the operation, use or appropriation of the national waterrights that were licensed or assigned ceases. Those who maintain licenses of national water rights shouldunderstand the details of such rights and the importance of taking measures to prevent their expiration.
On May 25, 2011, Mexico’s new Immigration Law was published in the Official Journal of the Federation andbecame partially effective as of May 26, 2011. This new law introduces the concept of “Status of Stay”(Condición de Estancia), which refers to the status assigned to a foreigner with intent to reside in Mexico, whenthe activities he or she carries seeks to carry out so allow, or to the status assigned to a foreigner allowed to residein Mexico based on humanitarian criteria. Additionally, a residency card was introduced, which in certain aspectssubstitutes for the immigration documents that have applied to Temporary Visiting Non-Immigrants, Immigrantsand Permanent Residents. The new law replaced the more than thirty statuses and characteristics provided by theGeneral Population Law (Ley General de Población) that formerly categorized immigration status as non-immigrant, immigrant and permanent resident, with the following three large “Status of Stay” groups: (i) Visitor,(ii) Temporary Resident, and (iii) Permanent Resident. The new Immigration Law establishes that, in certaincases, foreigners who intend to enter the country must present one of the visas referenced by the new law. It isworth noting that none of these visas grant the right to work for payment, unless such visa states so. On the otherhand, the new immigration law restricts the discretion of immigration authorities to refuse the issuance of visas,legal entry into Mexico or the presence of foreigners in Mexican territory. One of the fundamental values adoptedin such immigration law is its respect for the human rights of immigrants - nationals and foreigners alike -irrespective of their origin, nationality, gender, ethnicity, age or immigration status. The new law is consistentwith the equality between nationals and foreigners set forth in the Mexican Constitution, especially when itcomes to the observance of their individual rights. Prior to entering Mexico, it is advisable to seek legal advice todetermine applicable visa requirements, and if a visa is required, which type would apply,, including adetermination of the correct status of stay that applies to each individual case.