The Mexican Industrial Property (IP) Litigation system is divided in three general instances/stages that in some cases could be increased to four instances/stages. This structure implies, in a first situation, that a final decision in IP litigation could be obtained after a long time since the beginning of the litigation process, which sometimes disheartens the parties involved.
Furthermore, even though the Mexican legislation establishes the precise period of time for the issuance of the correspondent decision for each instance/stage, they are usually not acknowledged by the authorities.
The Mexican Institute of Industrial Property (MIIP), which is the administrative authority that promotes and protects the Industrial Property Rights in Mexico, also evaluates and decides on the first instance/stage of the IP litigation in Mexico, an administrative procedure followed up as a complete trial. The Mexican Legislation establishes that the MIIP’s decisions can be appealed through the Review Recourse or by a Nullity Trial.
The Review Recourse may be the second instance/stage if the plaintiff decides to file this appeal before filing the Nullity Trial. This appeal is also filed and prosecuted by the MIIP. Once the MIIP notifies the decision issued in the original proceeding (infringement or cancellation action), the affected party is entitled to appeal it within the next 15 business days. This decision takes approximately 4 to 6 months to be solved. Once the MIIP reaches a decision, it can be appealed through a Nullity Trial.
One of the most common problems that the authorities at the MIIP face in both instances/stages is that they must analyze and solve an important amount of different kinds of IP litigation actions (namely infringement and cancellation actions). Consequently, they are not able to issue their decisions on time
The Nullity Trial - is an appeal filed and prosecuted by the Federal Court of Tax and Administrative Affairs (FCTAA). This appeal is considered as the second instance/stage unless, as it is mentioned before, the Review Recourse is filed. Once a decision is issued by the MIIP, the plaintiff is able to appeal it within the next 45 business days. This procedure takes at least approximately 10 to 12 months to be solved. One of the most common problems that the FCTAA faces is that they have to examine and issue all kinds of administrative litigation matters, including IP litigation As a result of the above, the FCTAA’s decisions are usually not solved in time. Once the FCTAA reaches a decision, it can be appealed by a constitutional action called Amparo Trial.
The Amparo Trial is an appeal prosecuted before the Federal Circuit Courts. This appeal is considered as the final instance/stage. The plaintiff must file this appeal 15 business days upon the Nullity Trail decision was made. Then, the Federal Circuit Court will analyze whether or not the FCTAA followed the set of laws and principles established in the Mexican Constitution. This procedure takes up to 6 months approximately, and it is the last stage of the procedures. The substantial problem that presents to these Courts is that they have to revise the final appeals related to all administrative litigation matters including IP, as well as every kind of violations to the principles established in the Mexican Constitution. Because of that, the Federal Circuit Court decisions are not solved when they are supposed to.
According to the "Labor Report: 2005" issued by the Federal Judicial Council, 28,589 cases were submitted to the Administrative Federal Circuit Courts. From those cases, 7,133 were Amparo Trials from several administrative matters, including the ones concerning Industrial Property Rights. From those Amparo’s, 1190 remained unsolved at the end of the year. There are 15 Administrative Federal Circuit Courts available in Mexico City that prosecute the Amparo Trial of Industrial Property Rights and other administrative matters. However, their workload is extremely heavy and time consuming.
The delays of the MIIP and Federal Courts decisions could be attributable, in my opinion, to the cases that were not solved when they were supposed to, which are a direct consequence of the extremely heavy workload that the MIIP and the Federal Courts cope with.
I think that a reform that deals properly with the delay in the MIIP and in the Federal Courts is essential. This holdup causes a disruption in the legal system, and consequently, there is a lag in the resolution of the Industrial Property Right cases. As a result, clients are being affected due to a situation that authorities should not have allowed to happen in the first place.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
