Academic journal article Marquette Intellectual Property Law Review

Trademarks under the North American Free Trade Agreement (NAFTA), with References to the Current Mexican Law

Academic journal article Marquette Intellectual Property Law Review

Trademarks under the North American Free Trade Agreement (NAFTA), with References to the Current Mexican Law

Article excerpt

I. INTRODUCTION II. WHAT IS NAFTA? III. NAFTA, CHAPTER XVII, INTELLECTUAL PROPERTY      A. General Aspects         1. Nature and Scope of Obligations         2. More Extensive Protection         3. National Treatment         4. Control of Abusive or Anticompetitive Practices or            Conditions      B. Trademarks         1. The Concept of Trademarks         2. Rights of the Owner of Registered Trademarks         3. Use of Trademarks         4. Procedure for Trademark Registration         5. Objects that are Distinguished by the Trademark         6. Rules Pertaining to the Notoriety of the Trademark         7. Duration of the Certificate         8. Obligations and Formalities of Using the Trademark         9. License and Transfer of the Trademark         10. Exceptions         11. Causes for Rejection of Registration      C. Restraining Application of Intellectual Property Rights         1. Enforcement of Intellectual Property Rights: General            Provisions         2. Specific Procedural and Remedial Aspects of Civil and            Administrative Procedure         3. Precautionary Measures         4. Criminal Procedures and Penalties         5. Enforcement of Intellectual Property Rights at the            Border IV. APPLICATION OF NAFTA TRADEMARK REGULATION TO THE      MEXICAN LEGAL SYSTEM      A. Trademarks on the Internet V. MEXICO IN THE INTERNATIONAL ARENA OF TRADEMARK LAW      A. Mexico's Treaties Involving Trademarks      B. Future of NAFTA         1. Trade Balance         2. FTAA         3. TPP VI. CONCLUSION 

I. INTRODUCTION

A trademark is any distinctive sign indicating that certain products or services have been manufactured or rendered by a specific person or company. (1) This concept is currently recognized worldwide; however, the origin of trademarks dates back to antiquity when artisans placed their signatures or "marks" on their products containing an artistic or utilitarian element. (2) Through time, these marks have evolved to such an extent that today a reliable and efficient system for their registration and protection has been established. Besides protecting owners of trademarks, this system also helps consumers identify and purchase goods or services, which because of the essence and quality of their "unique" trademarks meet their needs.

These observations serve as an introduction to this article consisting of five parts. Part two begins with a brief explanation of the North American Free Trade Agreement (NAFTA) leading to part three, the study of trademarks under chapter XVII of the Agreement. It is important to mention that part of the study of definitions and norms that this part contains is based on the trademark doctrine of Spain. (3) Attempting to explain trademarks under NAFTA, excellent Spanish commentators are cited through their works.

Part four explains how NAFTA's trademark regulations were applied to the Mexican legal system, which allows us to observe the practical implementation of this important Agreement within the legal system of one of the participating member states. It is noteworthy to mention that through international agreements like NAFTA, one can witness the convergence of countries with distinct legal traditions, such as Mexico and the United States, and in large part Canada, and the unification of the asymmetry that exists between these countries. The Agreement's effect on Trade Related Aspects of Intellectual Property Rights (TRIPS) within the Mexican trademark legislation before NAFTA was signed is explained, as is the worldwide impact of the Agreement. Finally, part five discusses the introduction of Mexico into the international trademark arena, sets forth the international treaties that involve trademark matters that Mexico has entered into, as well as those that are still pending, and explains the impact those treaties might have on the future of NAFTA.

II. WHAT IS NAFTA?

During the first months of 1990, representatives from the Mexican government initiated talks with representatives of the United States to analyze the possibility of negotiating a free trade agreement between the two nations, which would also include Canada. …

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