Protecting trade dress
por María Fenton
Managing Intellectual Property, International Briefings, April 2010
Mexican intellectual property law protects producers, manufacturers, and service providers of all types from having the distinctive features of their products copied, exploited or reproduced without the proper authorisation.
Intellectual property law allows protection for these products via distinctive signs covering trade marks, trade names, slogans, and appellations of origin. These signs are used to distinguish each product or service from others of their same class or species.
While these four options may seem adequate to ensure protection, Mexican IP law still does not provide trade dress protections. Although the law includes a chapter allowing minimal protection for trade dress, it is not properly regulated.
Often, one must take into account the many elements that add distinctiveness to a brand as a whole, rather than individually – from the way in which a product’s packaging is presented to the layout of a store. This is considered trade dress, for which more specific laws are required to ensure protection in Mexico.
The only alternative for dealing with a third party who is infringing or copying notorious trade dress in Mexico is by claiming that the rights have been violated on the grounds of unfair competition. This tactic has been successful, and has helped to establish new precedents.
However, the more practical way to protect and enforce trade dress rights would be to establish specific regulations for trade dress in the Mexican IP law, including the proper definitions, characteristics and scope of protection necessary.