Mexico: How To Maintain Trademarks In Mexico

Under the prior Law of Development and Protection of the Industrial Property in force up to June 27, 1991, trademarks, slogans, and commercial names had a 5 year lifeterm counted from their Legal Date. Thereby, they had a term to apply for the renewal 6 months prior to their due date and a six-month grace term after said due date.

The legal date of a trademark is the date on which the application is filed. It is important to note, however, that this legal date may vary if the original denomination is changed by another one during the prosecution of the application. When this happens, the legal date of the trademark becomes the date on which the change of the denomination was made.

Additionally, for trademarks granted under the law in force up to June 27, 1991, it was necessary to file a proof of use three years as of the granting of the register. When applying for the renewal , it was also necessary to file said proof of use together with the renewal petition.

Said proof of use consisted in a declaration containing economical information, such as the amount of sales for the last three years, the address of the commercial or industrial establishment, and three labels of the trademark as it was used in the market.

It is important to stress that, if the labels of the trademark in use were different somehow from the trademark originally filed, the proof of use could not be filed before the Mexican Trademark Office, and it was necessary to file a new application to cover the new trademark. Furthermore, if the trademark did not have sales within the last three years, the proof of use could neither be filed, so it was necessary to file a new trademark application. Only in the cases on which the causes for not selling the products under the trademark were of major force, this fact could be manifested and the proof of use could be accepted.

For the cases on which the use could not be proven, the new applications could be filed under Article 99 of the IP Law which gave the owner of a trademark the exclusive right of re-filing a non-used trademark, within one year as of the due date. Said new application was considered as a continuation of the prior non-used registration.

In Mexico, no renewal can be applied before the granting of a trademark registration. Therefore, trademarks which were granted after 5 years as of the filing (legal) date, and for which the term of applying the renewal had expired before granting, the owner of the trademark could apply the renewal within one year after the granting of the registration, under the Article 84 of the Rules.

Currently with the IP Law in force as of June 28, 1991, the mechanism for maintaining a trademark in Mexico features the following aspects:

a) The lifeterm of registered trademarks was extended from 5 to 10 years as of their legal date.

b) It is not necessary any more to prove the use of a trademark by filing labels, sales, etc. The only requirement is that the use of a trademark is not interrupted for a period of three consecutive years or more and it is not mandatory to file any document before the Mexican Patent and Trademark Office.

c) If a trademark is not in use in Mexico, the registration cannot be renewed in view of the fact that the Renewal Petition includes a Declaration Under Oath about the non-interruption of the use for a period of three consecutive years or more. If that were the case, it would be recommendable to file a new trademark application to obtain again the lost rights by lack of use. It is important to remark that this new application will not be considered as a continuation of the prior non-used registration.

d) If at the moment of renewing a trademark the denomination, the mentioned registered trademark is not in use exactly as it was granted, it may be renewed only if the variation among the two trademarks is not substantial. If, on the contrary, there is a significant variation, then it is highly recommended to file a new application that covers the new modified denomination.

e) In those cases where the term for the renewal expires before its granting, there is not a specific rule which delimits a term to apply for a trademark registration. It is highly recommended to file the application as soon as possible after the granting of the registration. However, it is possible to receive an official letter from the Trademark Office fixing a term for requesting the renewal of the trademark registration.

f) Finally, it is important to have in mind that if a trademark was initially filed covering some specific articles, and if said trademark is reclassified in accordance with the Classification adopted by the Trademark Office, it will always keep on covering ONLY the articles for which it was granted.
Besides, although the registration may fall into several classes after its reclassification, it will only be necessary to file one renewal petition covering all the classes as reclassified.

The maintenance of trademarks in Mexico has been simplified in the recent years, but it is very important to remember that if the trademark registration is not in use, it will be useless trying to have said trademark renewed, and that it will always be better to file a new fresh application to cover the non-used trademark registration.

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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