IP Notes – Trademarks Not Subject to Registration

by: Antonio Campero Article 90 of the Mexican Industrial Property Law establishes various restrictions as to trademarks. These restrictions include the prohibition of the use within trademarks of codes of arms, flags or emblems of any country, official symbols or seals adopted by a state, and names or graphic representations of official insignia, medals or other such awards. Inclusively, this law prohibits the imitation of previously registered trademarks which are descriptive of the products or services sought to be covered, and imposes other similar restrictions. In this instance, we wish to highlight prohibitions on registering trademarks that are "translated from other languages, creative spelling variations of pre-existing marks, or artificial constructions of non-registerable words." It is understood that international marketing specialists must employ their creativity to ensure that the general public can easily identify products or services being sold by their corresponding trademark. However, while this creativity is usually the key to a successful trademark, it is not acceptable when utilized to manipulate applicable legal provisions and is the reason why these restrictions exist. When one is told that a trademark cannot be registered under a particular name as such is merely descriptive or because it imitates another mark, human ingenuity immediately sets in to develop another trademark which may not appear to violate any prohibition at first glance. Many times this is inadvertently achieved by translating such trademark to another language or finding a creative spelling variation for the mark. Consequently, it is due to these specific reasons that the aforementioned restrictions in Mexican Industrial Property Law were developed in order to strengthen intellectual property law and to ensure that the restrictions it imposes on trademark registration are not easily bypassed by the use of creative techniques.

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