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By attorney: Jaime Israel Dávila Gómez
In Mexico, the law defines trademarks as any visible sign that distinguishes products or services from one another in the marketplace. The right to use a trademark in an exclusive form, which means, being able to prohibit anyone else to use it for certain services or products; this right is given through a registration in the Mexican Institute of Industrial Property.
As far as to trademark definition is concerned, it is a primary subject that a sign, which is intended to be used as trademark, complies with the function of distinguishing, meaning that, the consumer is able to differentiate between the trademarks of similar products or services, which have distinctive characteristics and are from different businesses. For instance, when someone is at a store in front of the wines that are on sale, the brand is what allows him/her to choose the one that fulfills his/her needs from the variety to choose from, such differences are things like quality of product and price.
A trademark distinction is so important that no registration can be given to signs that are genetic or descriptive for products or services that pretend to protect themselves through this kind of registration. In other words, if someone’s activity is selling apples, he/she would not be able to register the word “apple” in Mexico, for the fact that “apple” is a genetic word, which means, it is the word used to call that product. In the same way it wouldn’t be possible to register words such as “nutritious” or “healthy”, trying to describe an apple. This limitation exists because, in such example case, those are words necessary to sell the product since it is the product’s name itself or its characteristics to describe it, and if authorization of exclusive registration of such words was given, the free competition of such products in the free-market will be seriously injured.
If a person or a company uses a sign that is distinctive to offer services or to make products, that is a first important step towards obtaining his/her trademark registration and the benefits derived from it, which basically are the rights of exclusive use and the right to exploit the Brand economically through special licenses given to third parties for its use.
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