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Under the Mexican Trademark Law there is no obligation to use a
trademark until renewal time is reached in the 10th year as of the
filing date of the registration to be renewed and when filing the
application for renewal it is only necessary to declare under oath
that the mark has been used during a term of the last three
years.
Notwithstanding the above, Article 130 of the Industrial
Property Law, provides that if a registered trademark is not
used in Mexico for three consecutive years the corresponding
registration will become contestable unless registrant or duly
recorded licensee had used the trademark during the three
consecutive years prior to the filing date of a cancellation action
based on non-use against it or that non-use was caused by
circumstances beyond the will of registrant that have constituted
an obstacle for the use of the trademark, such as import
restrictions or other governments requirements applicable to the
goods or services covered by the trademark.
In other words, although a registration would be vulnerable due
to lack of use, it will be in force until its renewal time.
Likewise, if the trademark is in use and a three year period
expires, nothing should be done but we could file a communication
informing IMPI that it has been used for a period of three
consecutive years.
This communication is recommendable to discourage third parties
from taking frivolous cancellation actions on account of non use
but it is not mandatory nor in compliance with any particular
provision of the law; it should be considered just as a
precautionary measure but will not prevent a third party from
taking cancellation action anyway.
In any event, if a trademark is not in use during three year
periods in Mexico but clients are interested in obtaining
protection, we recommend to re-file for the mark of interest.
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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