Mexico: In the shadow of the drugs war

In early October, upon request of the US, Mexican authorities captured Ovidio Guzman, a high-ranking member of the Sinaloa Cartel and the son of incarcerated drug lord ‘El Chapo’, in the city of Culiacán.

His detention was brief. Following the arrest, his half-brother Ivan Archivaldo Guzman led a violent assault on security forces, who were forced to free Ovidio just hours after he was caught.

Erwin Cruz, an associate at Olivares, tells WIPR that in the hours following the arrest, the cartel’s gunmen sent the city into “complete chaos”.

“This situation is an indication of what the cartels are capable of when they deploy their forces,” he warns.

It is exactly this response which makes it “almost impossible”, Cruz says, for some breeders to assert their plant variety rights—an essential form of IP in Latin America.

Thanks to its climate Mexico, and the region of Sinaloa in particular, has fertile land for growing diverse plant varieties including roses, berries and avocados. But this climate is also beneficial for plants that interest the cartel, namely opium poppies and marijuana.

“Because the cartels are interested in the plants that produce the drugs they need, they assert a strong authority on the land they use,” Cruz explains.

Some of the plants grown by the cartels may infringe the rights of breeders in the country.

“If a cultivator is working with the cartel, but is infringing your plant variety, it’s almost impossible to enforce your rights,” he says.

A breeder can file a complaint with the relevant authority, which then says it will take action, but the problem is in the enforcement.

"Legislation that protects bredders does not follow the latest international standards." - Micaela Filippo, CIOPORA

“It’s very dangerous and the cartel may reply with violence. In some cases, they kidnap people. Even if you visit the area with policemen, if the force of the cartel is strong, it’s almost impossible to take any action,” he says.

A clear example of this is the recent arrest of Guzman. “When it becomes a question of national security, that is more important than the protection of plant variety rights,” Cruz admits.

Redundant rules

Aside from the security concerns, breeders in Mexico also suffer from outdated legislation, say lawyers.

Micaela Filippo, legal counsel at the Communauté Internationale des Obtenteurs de Plantes Ornementales et Fruitières à Reproduction Asexuée (CIOPORA), says that while Mexico has ideal land for growing a wide variety of crops, legislation that protects breeders “does not follow the latest international standards”.

She says CIOPORA, an independent non-profit which aims to facilitate the protection of IP rights for plant innovation in asexually reproduced crops, is currently working to help Mexico accede to the 1991 Act of the UPOV Convention.

Since its inception in 1961, UPOV has been amended three times, in 1972, 1978 and most recently in 1991. The latter version is the highest standard in the world for the protection of plant innovation.

Mexico is currently a member of the 1978 convention, but this may soon change.

Last year, Mexico entered a number of international trade agreements, such as the US-Mexico-Canada Agreement, under which it is obliged to upgrade its UPOV membership to the level of the 1991 Act.

“To do so, Mexico will have to update its legislation in order to meet the UPOV’s highest standards,” Filippo says.

Juan Alberto Díaz Wiechers, a founding partner at Díaz Wiechers, says Mexico is one of the easiest countries in which to file for protection of plant rights, because the authorities do not conduct tests.

“Mexico does not require breeders to send plant materials for testing, which is very convenient for those filing for protection within the country, and also for foreign breeders,” he says.

While obtaining protection is easy enough, Salvador Tafolla, a partner at Basham, Ringe y Correa, says the country has serious issues around the enforcement of plant variety rights.

“The main reason for this is impunity. Although our law intends to protect breeders, there is a lack of punishment for those that infringe their rights.

“Why would infringers pay royalties for a plant if they can produce it and obtain the benefits when there is a lack of punishment if they don’t?” he says.

The Mexican authorities are working hard to reduce piracy and infringement, but their efforts need to be much more punitive, Tafolla adds.

“It’s very important that our authorities create a strict and aggressive penal law to deal with the corruption,” he says.

One problematic scenario is when breeders license their plant variety rights to farmers who then breach the agreement by planting more seeds than was agreed in the licence.

“This is difficult to control because we don’t have rules and regulations about this.

“The parties make the agreements between themselves, so when farmers abuse the licensing agreements there is no path of action to take,” says Marcos Juárez, an associate at Arochi & Lindner.

Education gap

Another problem in the country is a lack of awareness of IP rights.

Juárez says that a few years ago, breeders in the country were “not even aware that they could register their IP rights”.

“Aside from this, they were not aware of the scope of protection offered by the plant variety law, but that is slowly changing.”

He says the government is taking steps to educate the public, but progress is slow.

“The authorities need to be more active about this. Although knowledge of this legislation is widespread among the bigger, industrialised breeders, the small breeders are still uneducated,” he explains.

This could change after the adoption of the 1991 UPOV convention.

Filippo says a lack of resources is a constant problem, but she hopes that under pressure from obligations under the free trade agreements and the modernisation of the law, the government will channel more time, money and effort into the education and protection of these rights.

Fact file