CCN MEXICO REPORT

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Issue #
116
 – 
September 2013

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Recommendations for the Use and Preservation of Registered Trademarks

September 11, 2013

In Mexico, as in the rest of the world, trademarks that are duly registered may be enforced against third parties who attempt to utilize or copy them. Nonetheless, it is advisable to take certain measures with respect to their use and proper maintenance, including the following recommendations:

  • Ensure that the marks are always used in the manner in which they were registered. Many times the design of a trademark evolves over time, which means that while the mark continues to maintain similar elements, it has been modernized in such a manner that it can no longer be considered the same trademark that was previously registered. In this case, the rights pertaining to such trademark may be lost for failure to use the mark in the manner in which it was registered. In any event, it is advisable to verify any changes from time to time in order to make decisions regarding the same or to register the new image of the mark.
  • The ® symbol is universally known and accepted to indicate that a trademark is registered. Although some designers may not like the presence of this symbol on the image of the mark, it is very convenient to accompany the mark with such symbol to give third parties notice as to the exclusivity of such mark. Similarly, it is highly recommended that the mark occupy a central space (noticeable) on the labels, packaging or printings of products that display the mark.
  • Naturally, with the passage of time, trademarks gain notoriety through their use in commerce, and, in some cases, such notoriety reaches a level where the name of the mark is used as if it were a "generic" term to identify similar products (even competitors' products are called by the same name). Mexican legislation provides that when a trademark is used as a generic term and its owner "provoked or tolerated" such, then the trademark can be cancelled. Therefore, it is necessary to always include the ® symbol, since it openly demonstrates the exclusivity of the name and makes the generic name of the product known to the public. Unquestionably, in the event third parties imitate or copy the mark, the owner should take necessary actions to avoid creating an impression that the owner tolerated the conversion of the mark to a generic term.
  • Always maintain adequate controls with respect to the validity of trademarks. In most cases, external agents are in charge of such tasks; therefore, it is prudent to ensure the avoidance of errors by such agents that may result in the loss of trademark rights for failing to renew such.
  • Finally, some companies have adopted a policy by means of which certain products and services that enter commerce immediately after their creation are sold using "stand-by" trademarks, which have previously been filed and are available for immediate use as necessary, even though the products such "stand by" marks cover have not been in the stream of commerce. This strategy can be costly but, at certain circumstances, may allow companies to bring products to the market ahead of their competitors.

Privacy in Mexico, New Risks and Requirements

September 11, 2013

Mexico ardently protects the privacy of its individual citizens' personal data and sensitive personal information (Information). This protection is enforced though the Federal Personal Information Protection Law ( Law) and its regulations (Regulations). The Federal Institute for Access to Public Information and Protection of Information (IFAI) is the agency in charge of enforcing the Law and its Regulations. The Law has the following eight main principles: i) Lawfulness, which requires using the Information in compliance with the Law; ii) Consent, meaning that consent should be obtained before handling the Information; iii) Information, prescribing instructions as to how Information should be handled; iv) Quality, seeking to maintain current and correct Information ; v) Purpose, tending to limit handling of the Information to the sole purpose described in the privacy notice (Notice); vi) Loyalty, which is the obligation to respect the terms in which the Information was issued to the responsible party; vii) Application, referring to the application of the Information solely for the strict purpose for which it was collected; and viii) Responsibility, adopting only those measures that are necessary in order to comply with the Law. Additionally, there are two duties that the responsible party should observe: a) Duty of Confidentiality, maintaining confidentiality of the Information; and b) Duty of Safeguarding, implementing the security measures of an administrative, physical and technical nature that guarantee the confidentiality and integrity of the Information. Among other things, the Law defines what constitutes Information and how such should be handled. As a result, companies should review and identify which types of Information they handle or will handle. Once the type of Information is identified, companies can take required measures and necessary actions to safeguard the integrity of the Information, being that the collection and protection of such varies according to the nature of the Information itself. Under the Law, companies must write, publish and issue the corresponding privacy notice, guidelines for which were briefly discussed in the February 2013 edition of this report.It is important that each person or company comply with the Law because any breach of such may result in an Information protection proceeding or in a verification procedure and, if applicable, fines of between 100,000 to 320,000 days of minimum salary in effect for the Federal District may be levied, with the possibility of being doubled in the event of a reoccurrence. For violations related to the handling of sensitive Information, fines can increase and even double, apart from applicable civil and/or criminal liability (including jail time), depending on the severity of the violation.

Mandatory Weekly Rest Days

September 11, 2013

Mexico's Federal Labor Law provides a series of rights that employees are entitled to that allow them to work under optimal conditions resulting in greater productivity and better performance of their job responsibilities. Among such rights is the right to receive a day of rest on at least a weekly basis. The purpose of the weekly rest day is to protect the health and physical and mental integrity employees. Such is intended to allow employees to reenergize themselves after the work week, and to provide them with time to rest and to spend time with their families. The Federal Labor Law establishes that for each six days of work, an employee will be entitled to at least one day of rest, with payment of full salary and benefits. The law also establishes that jobs requiring continuous labor, employees and employers must mutually agree on the days which employees will take e their weekly rest day. Nevertheless, they must try to designate Sundays for taking the weekly rest day. Today, it is common practice for non-union employees and employers to vary the scheduling of work hours during the work week, provided such schedule does not exceed the maximum allowed by law, in order to allow employees to take both Saturdays and Sundays off. Even so,, certain employment activities must, due to their nature, be performed on a Sundays, and those employees who are required towork on Sundays and rest on another day of the week shall receive an additional bonus of at least 25% of their regular salary. This bonus, which is referred to as the "Sunday bonus", takes into account that Sunday is normally given as a rest day, as it is often the day an employee can spend time with his/her family; this is the reason why an employee who works on Sundays receives the bonus payment, irrespective of the fact that he/she is given another day of the week to rest. It is important to note that when an employee does not work every day of the work week, or when he/she provides services to several employers on the same day or within the same week, such employee will be entitled to his/her proportional share of the salary for days of rest, calculated based on the corresponding salary for the days on which the employee worked or the salary received from each employer. The Federal Labor Law establishes that employees are not obligated to render services on their days of rest. However, if such work is necessary, the employer must then pay the employee (notwithstanding the salary corresponding for the day of rest salary for the services rendered. In the event that the weekly day of rest of the employee falls on a Sunday and he/she works on such day, in addition to payment of the salary corresponding to the day of rest, he/she must be paid double his/her salary for the services rendered. In such case, the employer is not required to make additional payment of the aforementioned Sunday bonus equivalent to 25% of the salary for an ordinary day of work.If the employer does not comply with the provisions set forth in the Law, labor authorities may order the employer to pay for all of those days of work that were not paid to its employees, or to pay the full salaries that were not correctly paid to the employees. In addition, during company visits customarily made by the Department of Labor and Welfare, said Department may impose a larger fine on companies, ranging from 50 to 250 times the minimum general salary for each employee affected, in the event that the employees of the company do not receive at least one rest day per week with payment of full salary and benefits if such officials determine the employer has not met applicable rest day payment requirements.