Intellectual Property Law Copyright & Trademarks
Our topic • In Mexico Property Law refers to: • Propiedad Intelectual: Industrial property or patents. • Derechos de autor: Copyright. • Marcas: Trade marks. • For this presentation we will focus on the last ones.
¿Who Regulates? • Patents and Copyrights are regulated exclusively by federal laws adopted pursuant to Articles 3 and 28 of the MexicanConstitution.
For Trademarks • Trademarks are governed by the Law of Industrial Property (LPI) and until 1991 by the Law of Invention and Trademarks • And administrated by the Instituto Mexicano de la Propiedad Intelectual (IMPI).
But Copyright • Governed by the Federal Law of Copyright (Ley Federal de Derecho de Autor). • And administered by the Instituto Nacional de Derechos de Autor.
The Law and its improvements. • The U.S. government considered this Mexican law to be one of the least protective of its major trading partners. • The 1994 law is considered a major improvement. • It was last modified on 16/06/05.
Regarding Trademarks (Marcas): • Legal Definition: “Visible sign that distinguishes products or services from others on the market on the same kind or class”. • Trademark registration remains on effect for 10 years and can be renewed for subsequent periods.
The 4 kinds of Trademarks • Names for visible figures that distinguish products or services. • Three – dimensional shapes. • Trade, corporate or firm names. • Proper names of individuals.
Trademark registration • They do not require an examination by IMPI to assure uniqueness, but by simply following the legal procedure: Standard application and the label, photograph or sketches.
The three procedural stages: • Examination that the formal requirements, an of course payments, are met. • Examination that the application meets the statutory requirements of uniqueness and novelty. • Granting or denying the registration.
The protection • Once registered the proprietors product or service it receives the “Principle of Trademark Specialty” (Principio de especialidad de marca) under Mexican territory. • Now proprietors have the exclusive right to exploit, grant license, franchise, transfer, renew, assert administrative defense, file legal suit or privet criminal complaint.
The numbers • In 1990 there were 25,000 registered trademarks. • By the year 2000 the number had risen to 60,000.
Protection of Unregistered TradeMarks. • If a Trademark is already in use but not yet fully registered, article 151 section II of the LPI protects it against a new and very similar product or service.
Forfeiture of Registration • By nullification, lapsing or cancellation. • Lapses: When the Trademark is not used for more than 3 consecutive years, when its used in a way that alters its distinctive character, or when the proprietor does not renew it. • Cancellation: At request of the proprietor or when the Trademark becomes a generic term.
And annulment: when the Trademark was granted unlawfully, on the basis of bogus information, because of being identical or confusing with another one filed before, and because of a possible oversight .
Copyright • Protected by the 1996 Federal and its regulatory Law of Copyright (Ley Federal de Derechos de Autor) which incorporates international standards of regulation and enforcements. • The legal provisions are administered by the National Institute of Copyright (Instituto Nacional de Derechos de Autor). • In addition to the LFDA Mexico has signed eight international treaties regarding the matter.
One important difference • In contrast with the Anglo – American Common Law tradition, Mexican Law makes a distinction between moral and patrimonial or economic rights. • In practice moral rights allow authors to exercise some controls over the work.
Moral Rights • Inherent to the author or heirs, inalienable, perpetual and non transferable. • In the absence of heirs the work enters public domain.
Economic Rights. • The right to execute exploitation of the works of the author. • Hereditary and transferable temporarily (Titulares derivados), but always protecting the author. • If the work is product of a written contract of employment patrimonial rights are divided equally. • Literary, musical and stage productions must be registered in the Public Registry of Copyrights.
Protecting Copyrights • Original and Derivative works: The first ones are considered bona fide (right of ownership) and Derivative have related rights (Conexos) • Visual artistic works: Photographic, plastic and graphics. Intermediaries can, under contract, exhibit, but not reproduce the work. • Film and video: Protected as original works with patrimonial rights.
Computer programs and data bases: Considered and treated as literary works, prohibiting reproduction after sale. • Right to privacy: When information concerns the personal life or individuals access to it must be authorized. • Performing Artists: They must be recognized for their work and can protest or object to any deformation for 50 years.
Book Publishers: Unlike other kind of authors have right over editing and correcting their work (LFDA Article 125). • Sound Recordings and Broadcastings : They are entitled to prohibit partial or total reproduction as well as alterations before and after sale (LFDA Articles 129 - 194).
Limitations on Copyright • The first category of exceptions are public works: Certain literary or artistic works are deemed necessary for the advance of science, culture and education in Mexico are considered to be public benefit by the SEP, and can be reproduced even with out consent from the author. Examples: Material included in SEP`s free text books.
Fair Use: As in the U.S., quoting, reproducing part of a work for review or critique and research or one time single copy for personal and private use or for a library when the work is out of print.
Registration of Copyright. • Registration in the INDA is not required in order for literary and artistic work to be protected, but non literary or artistic must. • Registration can not be denied on the grounds of immorality, invasion of privacy or disturbance of peace unless a court orders so. • But can be denied for: works in public domain, registered trade marks or violations to the LFDA.
Reservations to the right of exclusive use. • Protects the marketing interests and goodwill associated with certificates of registrations for performing artists (e.g. Los Tigres del Norte), newspapers (Milenio), magazines (Proceso) or comic strips (El Libro Vaquero).
Collective Bargaining Associations (Sociedades de Acción Colectiva) • Similar to its U.S. counterpart the American Society of Composers, Authors and Publishers, the ASCAP. • They protect the rights of their members by licensing and distributing royalties for public performance of their copyright works. • There are 13 of this public interest associations in Mexico.
The law grants this association the right to exercise patrimonial rights, negotiate licenses and enter into contract agreements and collect royalties on behalf of their members.
On dealing with disputes. • Settlements (Adveniencia): Friendly out of court agreement mediated by INDA. • Arbitration: Held by a panel of three arbitrators recognized by the INDA, and if one party is not satisfied: • Civil action in a Mexican federal court.
Conclusion: Efforts to Strengthen Copyright Protection. • Mexican Copyright law contains a full array of enforcement procedures for ensuring the rights of Copyright holders. • The problem relies on the lack of its vigorous implementation. • Sales of counterfeit material, such as “pirate” CD`s and software have are commonplace in México's streets and markets with no authority doing anything about it.
In 1999 Mexican Congress reformed the Federal Criminal Code that makes it a crime to willfully sell to a final customer on the roads, highways or any public place unauthorized copies of Copyright protected material. • The violation will be penalized with 6 months to 6 years of prison and a fine ranging from 300 to 3,000 days minimum salary wage (Article 424). • The law is more effective in prosecuting organized crime than small unemployed salesmen.