In the Mexican Legal System there is a concept known as "Reserve of Rights" or "Reservas" for its translation into Spanish. Reservas exist in order to protect the exclusive use of a title or of elements included in the following intellectual property concepts: a) periodic publications; b) periodic broadcastings; c) human characterization, fictitious or symbolic characters; d) persons or groups engaged in artistic activities; and e) advertising promotions.
As a matter of introduction we could state that, in general, Reservas protect elements directly linked to a work of art (intellectual property in a strict sense) such as the psychological and physical elements of a character, a pseudonym, the name of a band, as well as others which are strictly linked to the cultural and intellectual properties of a creation or a work of art.
Reservas, once obtained, are intellectual property assets which have a limited time strain of enforcement depending on the element to be protected.
Periodic publications and broadcastings are valid for a year from their legal or filing date. Human characterization, fictitious or symbolic characters; persons or groups engaging in artistic activities; and advertising promotions are valid for a period of five (5) years from their legal or filing date.
The nature, purpose, and elements of protection of the "Reservas" are not the subject matter of this article. Instead, this brief study will deal with the administrative obstacles pertaining to their renewal.
Article 191 of the Mexican Federal Law of Copyrights states in general terms that the timeframes of protection granted by the Reserva certificates can be renewed by successive equal periods, with the exception of advertising promotions, which are not subject of renewal. Furthermore, the same article states thereafter that the renewal will be granted after its corresponding true/irrefutable proof of use, which must be dated within the validity period of the Reserva, has been filed along with the writ of renewal. This action can take place a month prior or a month after to the date of expiration of the validity of the Reserva.
Finally, the last paragraph of the legal disposition in review further mentions that The Institute (the Mexican Copyrights Institute) may reject/refuse the renewal to which the present article is referred (Article 191), when from the proofs of use filed by the interested party it is revealed that the titles, names, denominations or characteristics object of protection of the Reserva, have not been used exactly as they were reserved.
Several administrative problems are caused by a common misinterpretation that the owners of Reservas make of this article. The error lies upon the fact that if, for example, the proof of use filed shows:
- a different font or size of the title of a magazine; or,
- different clothing or visual elements of a fictional character,
they may not be renewed and the Reserva will be therefore lost. The owner will be in need of refiling it, which could pose a great risk of losing the Reserva completely to a third party in case it has a pending application which will be granted in the end, because the originally protected Reserva was not renewed.
The above is the main reason why the owners of Reservas must be very careful when filing their corresponding writs of renewal. They must take in consideration that, the renewal of the Reserva may be rejected when the current and actual use of the protected elements filed as proof of use differs from the one protected in the Reserva as originally granted or requested. The evolution or change of these elements must be subject of a new Reserva, rather than an extension of the existing one.
In sum, we strongly recommend to request professional counsel when filing a Reserva and its corresponding writs of renewal in order to avoid unnecessary expenditures and an eventual loss of rights.
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.