Last January 27, 2012, the Industrial Property Law (IPL) and the Copyright Law (CL) were amended. The most relevant issues of said amendments entering in force last January 30, 2012, are the following:
a) Industrial Property Law.
- Service by lists and through publication in the Industrial Property Gazette (Gazette). Any notice regarding litigation proceedings brought before the Mexican Institute of Industrial Property (IMPI) that cannot be made at the address designated for service of process in the first brief or in the official file, may be carried out through lists available at the record room of the IMPI and through its publication in the Gazette. This may also apply in cases where there is a default of response, contempt or non-compliance. Notices by lists are common in Court proceedings and clearly the aim of this amendment is to hasten the prosecution of the litigation proceedings at IMPI. However, in these cases IMPI will have to be careful to publish the lists the same day that the Gazette containing the notice is put into circulation.
- Visits of inspection. In the past, IMPI's inspectors were only authorized to conduct the visits in accordance with the points contained in the inspection order. With these amendments inspectors may state in the inspection report any other circumstance that occurs during the visit of inspection related to the case as well as to gather photographs, videos and other forms of evidence and integrate them to the report issued regarding said visit.
Furthermore, in the case of opposing (impeding the entrance of IMPI's inspector to presume infringer's premises) to the visits of inspection, the amendments provide two new sanctions:
- The facts intended to be proven will be presumed as certain, and;
- Any opposition to a visit of inspection will be considered as an infringement to IPL.
- New infringement causes. Besides opposing to a visit of inspection, lack of compliance with an order for document and/or information production or request is now considered as an infringement as well. It is not clear if these infringement causes will be studied and resolved in the same proceeding in which such causes are originated, or if it will necessary to initiate new proceedings. In any case, these new causes of infringement are new tools that will help IP owners in the enforcement of their rights.
- New fines for "willful infringement". Willful infringement, understood as an infringement made knowing the existence of an IP right, is now sanctioned with a higher fine. In accordance with this amendment, any infringement against an IP right that it is used in the Mexican market with the legends M.R., ®, ©, "patented product" or against an IP right that has been published in the Industrial Property Gazette, or against an IP right which existence has been notified to the public in a publication made in a nationwide newspaper, or even through a personal notification with receipt, should be considered as a "wilfull" infringement. In these cases, the fine will be double of the normal amount that should be imposed.
b) Copyright Law. The fine for some trade-related infringements is increased from 5,000 to 40,000 days of minimum salary.