Provisional measures have become one of the most powerful enforcement tools in Mexican intellectual property (IP) litigation. Regulated under the Federal Law for the Protection of Industrial Property (FLPIP), these measures allow rights holders to act swiftly against infringing activities and may be requested and imposed prior to the initiation of a formal infringement action before the Mexican trademark office (MTO) or during such proceedings.
Their relevance is expected to increase significantly in light of the upcoming FIFA World Cup 2026, where Mexico will serve as one of the host countries. The combination of large-scale commercial activity and recent legal reforms – particularly the recognition of ambush marketing as an infringement – places provisional measures at the centre of IP enforcement strategy.
Scope of provisional measures
Under Article 344 of the FLPIP, the MTO is empowered to order a broad range of provisional measures aimed at preventing or halting IP infringements.
These include:
Ordering the withdrawal from circulation or blocking the distribution of infringing goods;
Seizing goods and materials used in the production of infringing products;
Prohibiting the commercialisation or use of infringing goods;
Ordering the suspension or cessation of infringing acts;
Blocking, removing, or disabling access to infringing content in digital environments; and
Suspending services or even closing establishments when necessary.
This wide spectrum of measures allows the authority to tailor its response depending on the nature and urgency of the infringement, including physical and online scenarios.
Legal threshold and requirements
The granting of provisional measures is not automatic. Article 345 of the FLPIP establishes a set of requirements that must be met by the applicant.
First, the authority conducts a balancing test based on the appearance of a good right (fumus boni iuris) and the potential impact on public order and the general interest.
In practical terms, applicants must:
Prove ownership of the relevant IP right;
Demonstrate an actual or imminent infringement, a risk of irreparable harm, or a risk that evidence may be destroyed or concealed;
Provide sufficient information to identify the infringing goods or activities; and
Post a bond to cover potential damages to the alleged infringer.
The bond requirement is particularly relevant, as it may be adjusted by the MTO if deemed insufficient after the measures are implemented. This introduces a financial consideration that must be carefully assessed before initiating action.
Provisional measures will remain during the infringement action proceedings and until the issuance of the final decision, unless the defendant files a counter-bond to suspend the effects of the measures adopted.
Strategic considerations and risks
While provisional measures are highly effective, they are not without risks.
One key strategic consideration is that defendants may respond aggressively, including by filing invalidity or non-use cancellation actions against the claimant’s IP rights. This can shift the dispute into a broader and more complex litigation scenario.
Additionally, Mexican practice requires compliance with the marking requirement, which is often satisfied through publication of the trademark in a national newspaper. Failure to comply with this requirement will prevent the imposition of provisional measures.
Another critical aspect is timing. Once provisional measures are granted and executed, the claimant must file the formal infringement action within a statutory period (20 business days). Failure to do so may result in liability for damages caused to the alleged infringer.
Relevance in the context of the World Cup
The importance of provisional measures becomes particularly evident in the context of large-scale events such as the World Cup.
Recent amendments to the FLPIP have introduced ambush marketing as a specific administrative infringement. This refers to the creation of a false or misleading association between a trademark and a mass event, suggesting sponsorship or endorsement where none exists.
This development has significant practical implications:
Companies must carefully design advertising campaigns to avoid unauthorised associations with major events;
Rights holders now have a clearer legal basis to act swiftly against infringers; and
The MTO is expected to play a more active role in monitoring and enforcing these rights during the event.
In this context, provisional measures offer a crucial mechanism to immediately stop infringing campaigns, remove unauthorised content, and prevent reputational and economic harm.
In summary
Provisional measures under Mexican IP law are a robust and flexible enforcement tool that allows rights holders to act quickly and effectively against infringement.
Their importance is heightened by the evolving legal framework and the upcoming World Cup, which will likely generate a surge in IP disputes, particularly in relation to ambush marketing.
For practitioners and rights holders alike, understanding the scope, requirements, and strategic implications of these measures is essential to navigating the Mexican IP landscape and ensuring effective protection of intellectual property rights.
