Mexico: Litigating for reliable criteria
When talking about reserva rights – a legal institution exclusive to the Mexican legal system, which protects a variety of assets, such as titles of publications or broadcasts, among others– there is a problem that stands out: an absence of certainty regarding the criteria used by the authority (the Mexican Copyright Office, or INDAUTOR) when examining applications.
Indeed, INDAUTOR's criteria tend to vary on a case-by-case basis, partially because reserva-related litigation is uncommon. This, in turn, leads to an absence of judicial precedents that could be used as guidelines by the authority.
For comparison, the authority responsible for trade mark rights (the Mexican Industrial Property Institute, or IMPI) usually applies well-established criteria, largely based on judicial precedents, as trade mark-related litigations are the bulk of IP contentious proceedings in Mexico.
As an example, recently a federal court overturned an INDAUTOR ruling which had denied protection for a magazine title. The proposed title comprised the name of a fictional character, but the protection was denied because it was considered that, potentially, the title could be also the "name of a person".
In this case, the court reasoned that while the law prohibits granting reservas for "names of persons used in isolation", such prohibition should be understood in connection with "existing individuals", and was not applicable for titles that could be the name of a person whose existence was not demonstrated.
This ruling hardly seems ground-breaking, since IMPI has applied the same criterion for years, in connection with a similar prohibition for trademark registrations. However, it was the first ruling of its kind regarding reservas.
Cases like this exemplify why reserva-related litigation should be encouraged, since the existence of judicial precedents would allow future titleholders to have certainty over the criteria that will be applied by the authority in each case.
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