Protection and partnerships: Improvements to the framework for intellectual property and public-private partnerships (PPPs) support development

Opportunities for private companies in Mexico are supported by intellectual property regulations and the increasing use of PPPs to deliver infrastructure. The intellectual property legislation, improved by the North American Free Trade Agreement (NAFTA) and the local Agreements on Trade-Related Aspects of Intellectual Property Rights have benefited the control of intellectual property rights, patents registration, brands, industrial secrets and copyrights. Even though the results of this legislation over the last two decades have been promising, it is necessary to keep modernising to adjust to international standards. The upcoming renegotiation of NAFTA will certainly impact industrial property as well as the other legal aspects that influence local and external investment decisions in Mexico.

Trademark Rules

Mexico belongs to the Madrid Protocol, which has governed international branding registry since February 19, 2013. This offers the owner of a brand the ability to protect it in different countries by reducing red tape. In addition, on August 31, 2016, Mexico adopted the sistema de oposición de marcas (brand opposition system), allowing third parties to oppose, under certain circumstances, the granting of a branding registry while it is in its processing stage. This is meant to prevent wrongful consent if a branding registry might harm the legitimate owner. This new legal instrument will be an asset in Mexico’s intellectual property legislation as it will strengthen the legal framework, while accelerating administrative processes.

Another improvement is the recent publication of the agreement changing the norms of the electronic services and pay portal operated by the Mexican Institute of Industrial Property. Through this platform, it is possible to request, pay or process online the brand registry application, collective branding, commercial notices and commercial names. Every request can be processed through the institutes’s offices.

Since the US retired from the Trans-Pacific Partnership, Mexico could use its experience to increase its bilateral relationships with Europe, Latin America and Asia. Additionally, Mexico needs to move towards an increased recognition of non-traditional brands and a franchise modernisation.

Ppps In Mexico

The global financial turbulence of recent years has generated increasing interest and opportunities for PPPs in Mexico. The country faces a critical need for high-quality infrastructure and public services. While public funds for investment are being cut back, PPPs have become an important – and in many cases the only – alternative to financing government-led projects at the federal and local levels. Moreover, shifting development, maintenance, and operational risk onto the private sector usually results in higher quality and better results. There are important PPP opportunities in rail, highways, ports, airports, hospitals and water projects, among others. PPP projects are governed by the National Law of PPPs, passed in 2012. This law regulates projects carried out at the federal level and is mandatory at the state level when the federal government provides most of the resources. The law also applies to projects that involve long-term relationships between the public and the private sector with the goal of providing services and infrastructure to the public sector or the end users. Although the legal framework for PPPs has been improved, it can be further strengthened. Perhaps the most important element in this development is to establish a single agency responsible for planning, implementing, supervising and promoting all PPPs. It is necessary to have a strong and independent agency that stops corruption and abuses related to PPPs, while minimising political interference. It is critical to explain that PPPs are not a panacea, but an instrument to improve efficiencies in the delivery of services and narrow the infrastructure capacity gap.

OBG would like to thank Alejandro Luna & Armando Arenas – Olivares Intellectual Property Law Firm and Luis Rosendo Gutiérrez – Bureau de Política Pública for their contribution to THE REPORT Mexico 2017