Party in the USMCA: Mexico holds its hands up to IP change

Party in the USMCA: Mexico holds its hands up to IP changes

USMCA, NAFTA’s replacement, has brought Mexico to a crossroads for its IP industry

Ben Wodecki reports

The North AmericanFree Trade Agreement’sreplacement, theUS-Mexico-CanadaAgreement (USMCA),will shape Americantrade policy for years to come.

As an intellectual property jurisdiction, Mexico offers the same IP rights as its North American neighbours, including registrable rights such as patents, trademarks, and designs, as well as non-registrable rights including copyright and trade secrets. Mexico also offers origin denominations, plant varieties, and neighbouring rights.

New amendments to the Mexican Industrial Property Law modified the term of protection for industrial designs, introduced the protection of Geographical

Indications and widened the concept of “trademark”, to include non-traditional marks.

These changes might help Mexico to be more attractive for investment, at least compared with other countries, especially from Latin America.

In general terms, the filing of patents and trademarks in Mexico has been increasing in the last few years and authorities have duly taken steps to improve and modernise the country’s processes. These steps have placed Mexico among the most competitive countries in Latin America.

Just like its neighbours, the Mexican IP system has seen various numbers of amendments and changes in recently.

The newest amendment to the Mexican Industrial Property Law modified the term of

protection for industrial designs, introduced the protection for Geographical Indications and widened the concept of a trademark, to include non-traditional marks.

Maria Belen Rivadeneira, director of the IP department at Vivanco & Vivanco notes that the amendments have been introduced in order to conform to the Trans-Pacific Partnership and the Hague Agreement, with the latter being required for the entry into force of the US-Mexico-Canada Agreement (USMCA).

US president Donald Trump has emphasised that USMCA will “protect intellectual property” for US workers. But how will the agreement impact IP in Mexico?

Rivadeneira said she expects USMCA to impact IP in Mexico, specifically in patent prosecution and plant varieties.

USMCA will extend patent protection for pharmaceutical companies in Mexico and Canada to 10 years for biologics, bringing the term closer to the US’s 12-year protection.

The agreement includes increased measures for copyright protection, 10 years of data protection for biologic drugs and new protections against the theft of trade secrets. A White House statement called these protections “vital to promoting innovation and economic growth”.

Former Mexican president Enrique Peña Nieto signed the agreement on behalf of Mexico in November, but his successor Andrés Manuel López Obrador is a strong nationalist, and Rivadeneira questions whether or not he will take the agreement further. She points out that members of his team have mentioned that ratification might not happen if some import tariffs for steel and aluminium coming from Mexico are not eliminated.

Rivadeneira notes that Mexico still has to sign to several international treaties and make some additional amendments to the Mexican legislation, and adds that the legislative process is “usually very slow”.

Problems with pirates

Moving away from USMCA, one of the biggest issues facing the Mexican IP system is online piracy.

Global piracy reached almost 190 billion pirate site visits in 2018 and Rivadeneira says it is the “second most damaging crime after drug trafficking”.

Mexico is fourth in the world for piracy numbers and the highest in Latin America, according to figures provided by Rivadeneira.

For copyright holders attempting to combat this, Rivadeneira says their biggest challenge is “the excessive bureaucracy of the criminal and administrative authorities”.

She hits out at “the ignorance on IP topics of the officers in charge” as a reasoning why copyright enforcement is overlooked in Mexico.

Copyright in Mexico is administered by the National Institute of Copyright (INDAUTOR) and sometimes mediates certain types of copyright disputes.

Rivadeneira argues that INDAUTOR “lacks authority and [the] facilities to carry out enforcement of copyrights”.

But despite problems with pirates and challenges to be faced with the upcoming USMCA, Mexico is beginning to position itself as a challenger to the behemoth IP jurisdiction that is the US. With a little more time, Mexico could shape itself as a modern, forward-thinking jurisdiction, with a lot to offer to any IP owner looking for rights there.