Registered patents and inventions represent the technological status of a sector or country. Today, nearly allindustrialized countries have electronic databases run by their government operated patent and trademark offices,which include inventions that have been registered and that are currently being used, or which will soon be usedin commerce. As a result, it is relevant, though infrequent, for companies to consider searching various databasesrun by the governmental patent and trademark offices (meaning registered inventions or those whose registrationis under way and have been published), in order to become aware of the technological tendencies within theirsector. Failure to do so means potentially losing out on a great opportunity to initiate investigations based on theresults obtained and being able to identify those inventions that have entered the public domain because of thepassage of time so that such may be used by anyone. Companies frequently develop new and costly products andprocesses without first identifying their competitors’ products and processes that are currently in the marketand/or without identifying the direction in which their competitors are headed. Official databases containingpatent and invention registrations offer current information (pending applications are published prior toregistration in the majority of cases), which may allow for the identification of specific solutions to certainproblems and allow identification of legal protection for such inventions. As a result, searching these databasesmay assist in avoiding potential infringement on inventions that belong to third parties. Thus, it is a goodpractice for companies to develop a systematic and frequent search system of relevant inventions entering themarket that could affect future market trends and companies’ overall development strategy.
On November 1, 2012, Mexico’s Treasury Department published the First Resolution on Amendments to theGeneral Rules on Foreign Trade for 2012 in the Official Journal of the Federation. In the May and June editionsof the CCN MexicoReport™, we published articles related to the registration of Certified Companies and the NEEC certification system (Nuevo Esquema de Empresas Certificadas) or “NEEC”. In general terms, theCertified Company process consists of registering one’s company with the Mexican Tax Administration Serviceby means of which the registered company obtains access to various administrative facilities for customsclearance of merchandise, after having shown a high degree of compliance and control with respect to their taxand customs obligations. Among other benefits obtained by Certified Companies are access to all customshouses(inclusively for special merchandise), special means for speeding up the customs clearance process (exclusivelanes), on-site customs clearance for some exportations, special treatment for waste, the ability to immediatelycorrect documents and compliance obligations, and other means for a simplified administrative process. There arefive sectors for the registration of Certified Companies (A, B, D, F and L), but only one may be selected, eachwhich imposes various requirements and limitations depending on the one selected. Thus, the benefits are equallyscaled and are greater (cumulative) or lesser depending on the sector in which a company is registered. Sector Lis the most recent, also known as NEEC, and imposes the highest standard of control and compliance. As a result,such category allows access to a greater number of benefits for customs clearance. It should be noted that SectorL is divided into subsectors with their own requirements, restrictions and benefits. The First Resolution onAmendments to the General Rules on Foreign Trade for 2012 contemplates numerous relevant changes to therules for Certified Companies, in particular regarding program registration, renewal, causes for cancellation,activities that must be reported and periodic obligations, including new response periods and official formats. Thefollowing are the most relevant amendments:1. Specific authority is established for the Central Administration of Legal Affairs for Foreign Trade(Administración Central de Asuntos Legales de Comercio Exterior) over the registration of CertifiedCompanies;2. A format is created and established for the “Application for registration in the registry of certifiedcompanies;”3. The “Company Profile” for registration under NEEC is amended;4. Implementation of Instructions for applying for registration in the registry of certified companies;5. The requirement to obtain a favorable opinion prior to applying for NEEC is eliminated, making therequest for such simultaneous with the direct application for registration under NEEC;6. A fourth subsector is added for NEEC application to IMMEX companies adjacent to the Ciudad Juarezcustomshouse;7. A term of 140 days is established to review applications for registration under NEEC, resulting inconstructive disapproval (negativa ficta) if there is no resolution at the expiration of the term;8. A format is created and established for “Notices referred to by rules 3.8.2 and 3.8.4, related to theregistration of certified companies.” that now includes the notice of changes to the Company Profile andnotices of merger of Certified Companies;9. A format is created and established for “Notice of Renewal of Certified Company;”10. Annual obligations are specified for companies whose registration is valid for more than one year, such aspayment of fees and compliance reports under Sector D;11. Verification of compliance of the Company Profile requirement is incorporated upon renewal of theregistration under NEEC;12. Reiteration of the inability to renew a registration under sectors that have been repealed;13. Causes for cancellation of registration are reduced and clarified, incorporating a term for the cause forcancellation based on suspension from the Importers’ Registry and adding importation of restrictedproducts as a cause for cancellation under Sectors D and L;14. Establishment of a new administrative capability is for prior inspection processes so that the customsacknowledgment can serve as documentary evidence for various IMMEX companies upon importationand introduction to a customshouse deposit or a foreign trade zone (Recinto Fiscalizado Estratégico) inair traffic operations (Rule 3.8.7 section VI);15. The benefit of a 30 day term is granted for NEEC certified companies to resolve and disaffirm any causesof cancellation of their registration as Certified Companies; and16. Rule 3.8.13 is added to grant special benefits to the fourth sector of NEEC applicable to IMMEXcompanies adjacent to the Ciudad Juarez customshouse.Finally, the new rules clarify that even though the First Resolution on Amendments to the General Rules onForeign Trade for 2012 was published on November 1, 2012, the Treasury Department did not publish theAnnexes, glossary of definitions and acronyms 1, 4, 14, 22, 25 and 29 in the Official Journal until November 6,2012 containing, among other items, the new formats referenced.
In Mexico’s legal system, a general principal exists that holds that an important purpose of public registries is toprovide public notice of the legal acts recorded therein, so that such acts may be considered effective as to thirdparties and to provide certainty as to the date the acts were recorded. Note, however, that recordation by itselfdoes not create ownership rights for property owners. When conducting a legal inspection of a proposed realestate project, it is necessary to define the aspects that should be reviewed, which include recordation issues thatmay relate to the real property in question, and thus result in a need to consider various issues. First, the scope ofprivate ownership in Mexico should be considered keeping in mind regulatory guidelines applicable to the use ofsubsurface rights and air space that is subject to special laws. Therefore, the use of such areas does not by rightbelong to the real property owner, which may result in encumbrances on a property’s use and enjoyment.Metaphorically speaking, it can be said that if real property were an apple, the owner of such would have titleonly to the skin, and the authority to carry out construction on such skin would be subject to the limitationscontained in Mexican property law, including local regulations. This means that ownership of subsurfacematerials, such as minerals, petroleum and water belong to Mexico, and are regulated by special laws such as theMining Law and National Water Law, which means that the use of such requires governmental approval. This isclear except in the case of petroleum, which is reserved to the Mexican federal government. Furthermore, anotheraspect to consider is the variety that exists with respect to specialized public registries in areas that may limitownership rights, such as: (i) The Public Registry of Property (state or municipal) corresponding to the locationof the real property, for the various legal acts that are recorded in such registries; (ii) the Public Registry ofFederal Property, with respect to aspects related to the possible overlap with federally owned properties; (iii) thePublic Registry of Mining, related to authorizations granted to use of the subsoil; (iv) the Public Registry ofWater Rights, with respect to federal land zones and related authorizations; (v) the National Agrarian Registry,with respect to the origin of an ejido property (communal land) or possible overlaps with ejidos and indigenouscommunities; and (v) the Mexican Aeronautical Registry, with respect to airports and height limitations forconstruction due to the proximity to airports; among other registries and matters for review. In Mexico, there isno public registry that consolidates the information of all registries that could possibly affect real estate projects,nor are there common standards on how to maintain such registrations. As a result, it is necessary to evaluateeach project separately and determine which searches need to be conducted.
The First Collegiate Circuit Court of the Auxiliary Center of the Mexico’s Tenth Region issued opinion VIII.1o.(X Región) J/4 (9a.) titled: “Individual Employment Agreement for a Definite Time or Task. The Employer hasthe obligation to retain such documents in their files for at least one year after termination of the employmentrelationship when such relationship continues for an indefinite time.” In this opinion, the Collegiate Circuit Courtheld that, in accordance with section I, as well as the last paragraph of Article 804 of the Federal Labor Law, theemployer has the obligation to retain or safeguard individual employment agreements entered into for a definitetime or task and, if applicable, present such in lawsuits, when required, for a period of one year following theconclusion of the employment relationship, not one year after the termination of the employment agreement’sterm. Such rule applies given that, according with the opinion, the employment relationship does not end on theexpiration of the term of the agreement when the employee and employer have signed successive agreements,but, rather, the employment relationship survives and is transformed to an employment relationship of anindefinite nature.