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Using a brand

By: Jaime Dávila Gomez, Attorney

The owner of a trademark, has several obligations imposed by law, however the most important is to use it. This obligation translates, in most countries, and Mexico is no exception, in the possibility of losing ownership of a trademark if it is not demonstrated the use of it. The Industrial Property Law in Mexico indicates that the trademark must be used as requested by the authority (Mexican Institute of Industrial Property) or with minor changes that do not modify its distinctiveness.

For these reasons it is very important to have a solid brand registration, which is linked to the products or services actually provided by the company that uses the brand which is a sign that has not undergone modifications. It is a fairly common situation that a person registers a mark consisting of a name and a design (therefore he has the obligation to use the mark in the way in which it was registered) and begins to use these elements separately, putting the brand at risk, because technically it is not being used, but rather the person makes use of the elements that conform it, separately. In this case, at the time of a trial, the trademark owner would not be able to demonstrate that he uses the trademark as it was granted, and may lose the registration and a third party may be granted its use.

Another common situation, which companies should take better care of, has to do with the renewal of the company’s image, as this renewal often involves the modification of the brand, or the creation of new brands, so it is always advisable to see an expert because the change of the mark may involve using a brand other than the one that is protected (and therefore there’s a risk of expiration), which may require new registration.

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