The reform of August 10 2018 to the Mexican Industrial Property Law substantially changed the Mexican trademark landscape. Among the most relevant changes brought by this legislative reform, particularly the acceptance on behalf of the Mexican Institute of Industrial Property (IMPI) of non-conventional trademark applications – such as smell and sound trademarks – positions Mexico today at the forefront of innovation.
Article 88 of the Mexican Industrial Property Law, defines what is generally understood as a trademark. Notwithstanding the aforementioned, the two elements (clarity and precision), are to be transposed, respectively, into the wordings of the representation and the description.
From the perspective of an applicant, a sound mark can be represented by a pentagram, phonogram or onomatopoeia, and it can be described by words that indicate the instruments used in such reproduction, the notes and any other characteristic that defines the sound in question.
When it comes to scent marks, it is a whole different matter. For example, the description may establish what a smell is, so that the exact information regarding the organoleptic characteristics of the sign in question can be transmitted. However, what should the representation contain? And what is the scope of protection of the trademarks in terms of enforcement?
Since the average consumer is unlikely to perceive so many odours and may do so in different ways to the description, the scope of protection will be hard to determine and its enforcement may face obstacles which are not to be underestimated.
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