Mexico: Still In The Ballgame

On November 21, 2007, the Mexican Deputies voted, on a first stage of approval, in favor of amendments in the Federal Law on Administrative Procedure, which exclude Industrial Property matters from its scope. The Federal Law on Administrative Procedure formerly allowed interested parties to appeal the decisions issued by the Mexican Institute of Industrial Property (MIIP) including rejections of distinctive signs, litigations related to trademarks, copyrights and inventions, etc., through the Review Recourse or through the Nullity Trial, prosecuted and decided, in turn, by the Federal Court of Tax and Administrative Affairs ("FCTAA").

The amendments proposed rely on Section 1 of the Federal Law on Administrative Procedure as follows:

(Text in force)

Article 1. The provisions of this law are of public order and interest, and shall be applied to the acts, procedures and resolutions of the centralized Federal Public Administration, without detriment to the provisions of International Treaties to which Mexico is a party.

The present law shall not be applicable to matters regarding fiscal, financial, accountability of public servants, electoral, economic competition, agrarian justice and labor affairs, as well as to the Office of the Public Prosecutor of the Federation in the exercise of its constitutional functions.

For the purposes of this Law only fiscal matters are excluded when it is a question of the contributions and accessories stemming directly from the former.

(Text pending to be approved)

Article 1. The provisions of this law are of public order and interest, and shall be applied to the acts, procedures and resolutions of the centralized Federal Public Administration, without detriment to the provisions of International Treaties to which Mexico is a party.

The present law shall not be applicable to matters regarding tax matters, industrial property, and accountability of public servants, agrarian justice and labor affairs, neither to the Office of the Public Prosecutor of the Federation in the exercise of its constitutional functions.  In relation with economic competition, unfair practices in international commerce and financial matters, will only be applicable to title 3a).

For the purposes of this Law only tax matters are excluded when it is a question of the contributions and accessories stemming directly from the former.

It comes to our attention that the amendments only suggest to exclude Industrial Property matters (namely patents and trademarks) protected and enforced before the MIIP from the scope of the Federal Law on Administrative Procedure, leaving copyright matters out of the picture, even though copyright administrative infringements are also prosecuted and decided by the MIIP.

Should the proposed amendments succeed, it will only be possible to challenge the decisions ruled by the MIIP in connection with Industrial Property matters through the Amparo appeal, prosecuted and decided by the District Courts, as it used to be before their inclusion into the Federal Law on Administrative Procedure, back in the year 2000.

As with the decisions ruled regarding copyrights, the interested party will still be able to challenge said industrial property matters through the review recourse or the nullity trial, difference that – in opinion of the author - shows only one of many mistakes contained in the revision approved by our representatives, which, in order to be enacted, must be approved by the upper chamber of the bicameral legislature, which up to date, has not decided on this issue.

It is important to consider that District Courts decide on the legality of the acts challenged and submitted to their consideration, by ordering the authorities (in this case, the MIIP) to rule a new determination which usually confirms the same grounds exposed on the first decision challenged. This causes a delay on the issuance of a final and definitive decision.

Instead, the FCTAA has been ruling based on the merits of the case, ordering the MIIP to take specific actions in connection with the IP rights involved in the trial (for instance: granting a trademark registration or declaring a patent as null, etc).

As a clear reaction to the possibility of loosing its jurisdiction over Intellectual Property matters, and after eight years of handling them as account of appeal, on March 24, 2008, the FCTAA - currently in charge of prosecuting and deciding the Nullity trials initiated against MIIP's decisions - has created a Courtroom specialized in the subject, that will come into operation as soon as it is conformed.

The sole existence of this courtroom demonstrates not only the intention of the FCTAA to keep their venue on IP matters, but also to hasten the prosecution of trials that currently take one year and a half to two years to be solved.

However, its unexpected creation leads to wonder whether it represents a sign of the final position of the Senate in connection with the pending amendment already approved by the Deputies in the near future, or if it only illustrates a useless effort to specialize the practice of IP matters in our country. Whatever anyone may think, now the ball is in the Senators' field.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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