Answer ... Yes, there are two possibilities to appeal a decision rendered in an infringement action. The first is by filing for a review recourse before the head of the IP Enforcement Department of IMPI within 15 working days of being served notice of the decision, alleging illegality or lack of due process in the infringement proceeding. This option is recommended only if there has been an evident error or mistake in the proceeding; the first administrative decision may be revoked, modified or confirmed accordingly.
The party affected by the review recourse decision - or the first administrative decision, if a review recourse has not been pursued - may further file a nullity claim with the FCAA within 30 working days of being served notice of the relevant decision.
The FCAA is an independent jurisdictional administrative court which will review any violations of due process and/or the merits of the case, analysing only the causes for appeal expressed by the appellant in its brief of appeal. The nullity claim is prosecuted as a full trial and therefore all parties - that is, the plaintiff and the defendant in the administrative proceeding, as well as IMPI itself - are entitled to appear before the FCAA to file allegations and evidence.
In the nullity claim, the plaintiff can also request preventive measures in order to suspend execution of IMPI’s decision (ie, the imposition of a fine or other sanctions ordered by IMPI).
The FCAA will either confirm the administrative decision(s) or declare it null, ordering IMPI to issue a new decision following guidelines established by the FCAA. Usually IMPI takes about four months to comply with the FCAA’s ruling.
The FCAA’s decision may be appealed through a constitutional action on the grounds that it violates fundamental rights recognised in the Mexican Federal Constitution or in international treaties which Mexico has signed and ratified. Normally, the appellant claims violations of the right to legality, due process or judicial protection.
This type of action is known as an ‘amparo’ appeal and is prosecuted before a federal circuit court, by a panel of three magistrates. Once the appeal has been admitted, the interested parties are entitled to file arguments supporting the constitutionality of the FCAA’s decision.
If the federal circuit court decides in favour of the appellant, it will order the FCAA to revoke its decision and to issue a new decision following guidelines established by the federal circuit court. Otherwise, it will deny the appeal and the FCAA’s decision will become final.