Distinctiveness lies at the heart of trademark protection. It enables consumers to identify a sign as indicating a particular commercial source and to distinguish the goods or services bearing that sign from those offered by competitors.
A sign that merely describes the characteristics, qualities, nature, purpose, or other attributes of particular goods or services will not ordinarily perform this source-identifying function. Similarly, signs that are customary, generic, or otherwise devoid of distinctive character may fall within the absolute grounds for refusal established under Mexican trademark law.
Consumer perception, however, is not necessarily static. A sign that was initially incapable of identifying a particular commercial source may acquire that capacity through sustained use in the marketplace. When consumers cease to perceive the sign exclusively in its ordinary or descriptive sense and begin to associate it with a particular undertaking, the sign may be said to have acquired distinctiveness – often referred to as ‘secondary meaning’.
The sign itself does not necessarily change. What changes is the way in which the relevant public perceives it. Through use, promotion, and market recognition, an otherwise non-distinctive sign may acquire an additional significance: that of a trademark.
The legal basis for acquired distinctiveness in Mexico
Acquired distinctiveness is recognised under Article 173 of Mexico’s Federal Law for the Protection of Industrial Property (FLPIP).
Article 173 sets out the signs that may not be registered as trademarks. These include:
Technical or commonly used names;
Customary or generic terms;
Certain non-distinctive three-dimensional forms and holograms;
Descriptive signs;
Isolated letters, numbers, or colours; and
Translations or artificial variations of otherwise non-registrable words.
The second paragraph of Article 173 establishes an exception to the prohibitions contained in items I to VI. Those prohibitions will not apply where, as a result of the use made of the mark in commerce in connection with the goods or services covered by the application, the mark has acquired distinctive character in Mexico.
The exception is not unlimited. In particular, Mexican law expressly provides that acquired distinctiveness will not be recognised where protection is sought exclusively for a three-dimensional form that is inherent in the nature or functionality of the relevant product.
The enactment of the new regulations to the FLPIP in 2026 represents an important development in this area. Although the FLPIP already recognised acquired distinctiveness, articles 86 and 87 of the regulations now provide more specific guidance regarding the substantive requirements and the evidence that may be submitted to establish it.
Requirements under the new regulations
Under Article 86 of the regulations, a trademark will be deemed to have acquired distinctive character in Mexico where the applicant establishes:
Prolonged and exclusive use of the sign, in accordance with the commercial practices of the sector to which the relevant goods or services belong; and
Identification of the goods or services with the sign and an association between that sign and the relevant manufacturer or service provider.
These requirements confirm that use alone is insufficient. The applicant must establish not only that the sign has been present in the market for a meaningful period but also that such use has altered consumer perception.
The two elements are therefore closely connected. Prolonged and exclusive use provides the factual foundation, while consumer identification and association demonstrate the legal consequence of that use: the transformation of the sign into an indicator of commercial source.
The reference to the commercial practices of the relevant sector is also significant. The period and intensity of use required to acquire distinctiveness may vary depending on the nature of the goods or services, the structure of the market, purchasing habits, distribution channels, and the frequency with which consumers encounter the sign.
The regulations do not establish a universal period of use or a fixed percentage of consumer recognition. Each application must therefore be assessed in light of its particular market circumstances.
Evidence of acquired distinctiveness
Article 87 of the regulations identifies a non-exhaustive range of evidence that may be submitted by an applicant, including:
Advertising for the relevant goods or services in Mexico during the preceding three years;
Surveys, market research, and studies concerning consumer responses; and
Evidence of the channels through which the mark has been disseminated in Mexico, including, where appropriate, its positioning on electronic search platforms and in indexed search results.
Applicants may also submit any other evidence they consider relevant, and the Mexican Institute of Industrial Property may request additional information where necessary.
The reference to advertising during the preceding three years should not necessarily be understood as establishing a fixed three-year minimum period of use. Rather, it identifies a category and timeframe of evidence that may be submitted as part of the overall assessment. The fundamental questions remain whether the use has been sufficiently prolonged and exclusive in the context of the relevant sector, and whether it has produced the required association among consumers.
In practice, a persuasive evidentiary record may also include sales figures, market share, invoices, distribution data, geographical coverage, advertising expenditure, audience metrics, media coverage, industry recognition, website traffic, search data, and references to the sign by independent third parties.
Evidence of exclusivity is equally important. If the same or a similar sign is commonly used by competitors in a descriptive or generic manner, it may be difficult to establish that consumers identify it with a single commercial source.
Consumer surveys can be particularly valuable, provided that they are properly designed. The relevant universe of consumers must be correctly identified, the sample must be representative, and the questions must measure source association without leading respondents towards a predetermined answer. A survey showing mere awareness of a term will not necessarily establish that consumers perceive it as a trademark.
Building a coherent evidentiary record
The evidence should not be treated as a collection of unrelated documents. It must tell a coherent story demonstrating how use of the sign resulted in consumer recognition.
An effective record should ordinarily address three related dimensions.
First, it should establish the nature, duration, geographical scope, and intensity of use in Mexico. Evidence relating principally to use abroad may provide context, but it does not replace proof that distinctiveness has been acquired within Mexican territory.
Second, it should demonstrate the applicant’s efforts to present and promote the sign as a trademark. The manner in which a sign is displayed in advertising, packaging, websites, and points of sale may affect whether consumers perceive it as a source identifier or merely as descriptive information.
Third, it should contain evidence of the resulting consumer perception. Sales and advertising figures may demonstrate extensive commercial activity, but they do not invariably prove that the public regards the sign as identifying a particular undertaking. Market research, consumer surveys, unsolicited media references, and other independent evidence may help establish the necessary connection.
The evidentiary assessment must therefore be qualitative as well as quantitative. Longevity, sales, and advertising expenditure are relevant, but their value ultimately depends on whether they demonstrate that the sign has acquired a trademark function.
Practical impact of the 2026 regulations
The new regulations provide greater certainty by converting a broadly recognised legal principle into a more structured evidentiary framework. They confirm that acquired distinctiveness does not arise solely through the passage of time and that extensive use, without evidence of source association, may be insufficient.
At the same time, the non-exhaustive nature of Article 87 preserves the flexibility required to evaluate different types of signs, goods, services, and markets. The evidence needed for a consumer product encountered daily may differ considerably from that required for specialised industrial equipment or services purchased only by sophisticated business customers.
The regulations also reinforce the growing importance of digital evidence. Search-engine positioning, indexed results, and other forms of online visibility may help demonstrate the extent to which Mexican consumers encounter and identify a sign. Such evidence must nevertheless be interpreted carefully: online visibility may demonstrate exposure, but exposure is not necessarily equivalent to acquired distinctiveness.
Conclusion
Acquired distinctiveness introduces an important degree of flexibility into the Mexican trademark system. It recognises that a sign that was initially incapable of functioning as a trademark may come to perform that function through prolonged and exclusive use and, above all, through recognition by the relevant public.
The 2026 regulations represent a significant step forward by defining the principal elements that must be established and identifying the types of evidence that may support an application. They also make clear that prior use is only the beginning of the analysis.
The decisive question is not simply how long the sign has been used, how widely it has been advertised, or how successful the underlying product has become. It is whether the evidence demonstrates that what was once perceived as common, descriptive, or otherwise non-distinctive has become, in the minds of Mexican consumers, an indicator of a particular commercial source.
