According to Article 153 of the Mexican Industrial Property Law,
a mark can be cancelled from the register when it has become in
trade and for relevant consumers, the usual name of the products or
services it was registered for. This referenced provision regulates
the case of marks that – by acquiring of fame and the
tolerance of its owner – becomes the usual or generic
name of a product or service in trade.
In this regard, it is contradictory that Mexican Law –
accepting that distinctiveness can be lost – does not
have any express regulation about the acquisition of
distinctiveness by use. This lack of positive national regulations
implies that secondary meaning is not admitted as an argument for
trade mark registration by our Industrial Property Office (IMPI),
even if TRIPs states in Article 15 that the members – of
which Mexico is one – may condition trade mark
registration of non-distinctive signs to the acquisition of
distinctiveness by use. So even if a descriptive mark had been used
in Mexican trade by one single producer, so long and so exclusively
that it had developed secondary meaning to all relevant consumers
– referring to a clearly identified origin –
IMPI does not consider it in its decisions, arguing the lack of
national written regulations.
But distinctiveness can actually be acquired by use in trade,
and in fact every day weak trademarks become highly distinctive as
a consequence of their use in trade. So distinctiveness is not
immutable and can be lost as well as acquired. This is why we
believe that by application of TRIPs Article 15, Mexico should
incorporate and accept secondary meaning in order to allow the
registration of descriptive signs that have acquired
distinctiveness by use.
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.
Specific Questions relating to this article should be addressed directly to the author.
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