On September 30 2015, the Mexican Internal Revenue Service published in the Official Federal Gazette updated foreign commerce dispositions including those applicable to products such as jewellery, clothing, footwear, tobacco products, alcoholic beverages, pharmaceuticals and software, regarding the obligation to state the principal word mark, design, name-and-design or three-dimensional mark in the manifesto exhibited to Customs. The effective date of the dispositions was November 1.
The rules prescribe that the manifesto shall indicate: if the trader (i) is the owner of the trade mark, (ii) is a licensee of the trade mark owner, (iii) has a trade mark application at the Mexican Institute of Industrial Property (IMPI) and (iv) if the product does not bear any trade mark or it is not registered in Mexico. Likewise, if the trader does not belong to the regular chain of distribution of the trade mark owner (in the case of parallel imports), it is mandatory to state that the product is authentic. Note parallel imports are legal in Mexico.
Notwithstanding that the rules do not prescribe the obligation to attach any document to the importation/exportation manifesto, Mexican licensed Customs brokers are requiring their clients to exhibit an "authorisation letter" signed by the owner of the registered trade mark, and sometimes they only accept a letter executed by the representative who filed the application at IMPI. Customs brokers argue that shipments are suspended by Customs due to the lack of such a letter. However, Mexican Customs recognises its lack of authority to request that letter or to seize goods due to IP infringements without a warrant granted by IMPI or the Federal Attorney General's Office. This is because the letter is for the broker's own protection.
Therefore, it is strongly advised to analyse in which cases a trade mark owner will authorise an "authorisation letter" to be signed to ease the traffic of goods, review its terms, and bear in mind that a letter written in open terms may be misused in many ways by third parties.
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Sergio Rangel |
OlivaresPedro Luis Ogazón No 17Col San Angel01000 México DFTel: +5255 53 22 30 00Fax: +5255 53 22 30 01olivlaw@olivares.com.mxwww.olivares.com.mx
