1 December 2012Jurisdiction reportsIrma Ross

Mexico's system of IP protection: from Pangaea to TPP

Despite the fact that it was not until July 9, 2012, that the US Trade Representative (USTR) notified Congress of its intent to enter into Trans-Pacific Partnership (TPP) negotiations with Mexico, it has been clear ever since Mexico’s president, Felipe Calderon, expressed his interest in joining the TPP during his January 2012 visit to Davos, that Mexico’s system of IP protection has been adapting to accommodate what appears to be the minimum standards to join the TPP.

Since the agreement goes far beyond issues traditionally included in trade agreements, such as industrial goods, agriculture and textiles, and aims to incorporate new and emerging trade issues and cross-cutting issues worthy of the 21st century, some different but equally important battles have been launched among Mexico’s power players with the purpose of reaching towards a more harmonised and global-in-scope system, one that promises to boost Mexico’s emerging economy.

On April 25, 2012 Mexico’s Senate approved the draft decree on Mexico’s adherence to the Madrid Protocol concerning the International Registration of Marks, and one month later it was published in the Federal Official Gazette.

Mexico’s approval of the Madrid Protocol was followed by the Federal Commission for the Protection against Sanitary Risks (COFEPRIS)’s internal decree on data protection of June 19, 2012, which comprises, among others, a five-year maximum protection of information provided by pharmaceutical innovators.

This decree seeks to round off the long-existing provisions on data exclusivity rights mentioned in both the Mexican Industrial Property Law (Articles 82 and 86 bis) and the Health Supplies Statutory Law (Article 167 bis), which only mention that regulatory data is protected in accordance with international treaties of which Mexico is a signatory, and by means of nondisclosure, respectively.

More recently, and despite strong rejections by the Senate, the Federal Institute of Access to Information and Data Protection (IFAI) and the Federal Telecommunications Commission (COFETEL), Mexico’s ambassador in Japan, Claude Heller, signed the Anti-Counterfeiting Trade Agreement (ACTA) on July 11, 2012.

“THE APPLICANT IN A TRADEMARK APPLICATION MUST INDICATE THE DATE OF FIRST USE IN THE APPLICATION, AND THIS CANNOT BE AMENDED AFTER THE APPLICATION HAS BEEN FILED.”

Although the Mexican Congress refused to ratify it upon the basis that the Law on the Approval of International Treaties in the Economic Field was violated as the negotiations were held without duly informing the Senate, as well as ignoring its prior decision of September 2011 (where it concluded that ACTA restricts fundamental rights, such as the freedom of expression and the due process of law), following this year’s elections both houses of Congress have been renewed, which means that ACTA will now be analysed and discussed by the Congressmen who took office the last September.

Whether ACTA is ratified by the Mexican Congress, or enters into force—in terms of its Article 40—after due ratification, acceptance and approval of the signatories, is unknown. Certainly, the proximity, content and scope of these major events reassure those wondering about the IP chapter of the TPP, which supposedly is one of the most important and complex chapters of the treaty.

As of July 9, 2012, Mexico was on a 90-day mandatory period of consultation— on objectives related to its entrance to the negotiations—following which it was to participate formally in the negotiations along with Canada, Australia, Brunei Darussalam, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam, and the US. Therefore, the next round of negotiations (the 15th), which will be hosted by New Zealand in December, is long awaited.

Aside from issues related to economic integration across the Asia Pacific region, it is of great interest to Mexico’s IP community how the TPP Agreement will endeavour to address issues as controversial as counterfeiting and piracy of IP through digital communication technologies, parallel trade and liability of Internet service providers, inter alia, and whether harmonisation will be successfully achieved in the long term, provided it enters into force.

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