Mexico

The Federal Law on the Protection of Industrial Property of Mexico sets out the legal framework for traditional and non-traditional trademarks. Traditional trademarks include:

• Descriptive (letters, numbers).
• Design (shapes, color combinations).
• Tridimensional.
• Slogans.
• Trade names and company names.
• Personal names.
• Mixed (combinations of the above).
• Well-known names.
• Famous names.

Non-traditional trademarks include:

• Collective.
• Certification.
• Sounds.
• Scents.
• Trade dress (combinations of operation and image elements).
• Holograms.
• Position and in motion (open for discussion to be included in the Mexican law in 2026).
• Multimedia (open for discussion to be included in the Mexican law in 2026).
• Mixed (combinations of the above).

An example of a non-traditional trademark is Trademark No. 1086931 “HECHO EN MÉXICO”, owned by the Ministry of Economy. This is the official identifier of products made in Mexico, which allows identification by local and international consumers. This is a non-traditional trademark in that it is a certification mark, and may be used only if the goods meet the requirements established by the Ministry of Economy.

In Mexico, any entity or business can use a trademark, but the exclusive use is granted with registration. Unregistered trademarks are exempt from infringement if its owner can prove continued use in Mexico prior to the alleged affected registered mark.

Industrial designs are defined by Mexican IP Law as any combination of shapes, lines or colors embodied in an industrial or handcrafted product for ornamental purposes, which give it a peculiar and unique appearance.

Textile patterns, finishes or physical or pictorial finishes on items, where such patterns or finishes serve no specific function and are there for entirely aesthetic reasons, are mainly protected as industrial designs.

Industrial designs provide optional supplemental protection. Their validity is limited to 25 years, while the validity of a trademark may be perpetual.

Textile patterns, shoe soles and eyeglass shapes can be protected as industrial designs.

One of the key aspects of fashion law in Mexico is copyright and trademark protection. Mexican fashion designers are entitled to protect their creations to ensure that no one else can copy or sell them without their consent. This requires registration of their designs and brands with the Mexican Industrial Property Institute (IMPI), which will grant them exclusive rights over their work.

Copyrights are the precursor to trademarks. The fashion industry is driven by creativity and originality, and sketches, prints on any material, garment designs, photographs and/or pictures, are protected by the Federal Law on Copyright. They can later be protected under a trademark that allows for their industrial exploitation.

The Federal Law on Copyright and its regulations protect original works that can be disclosed or reproduced in any form or way. Such works are protected from the moment they are embodied in any material form, regardless of the merit, destination or means of expression.

The law recognizes the following types of work: pictorial or drawing, photographic, and applied art including graphic or textile design.

The law also provides protection through “Applied Artworks”, this kind of protection being granted to an artistic work applied to objects of practical use, whether they are works of craftsmanship or works produced on an industrial scale. Textile patterns may be covered as an artwork, similar to drawings or industrial designs.

Reservation of rights to exclusive use

This is an IP right which only exists in Mexico, and it is included in Mexican Copyright Law.

Reservations are the rights to exclusively use and exploit titles, names, denominations, distinctive physical and psychological characteristics, or original operating characteristics, as applicable, in any of the following:

• Periodical publications: published in successive parts with a variety of content and intended to continue indefinitely.
• Periodical broadcasts: issued in successive parts, with a variety of content, and capable of being broadcast.
• Human characters, whether fictional or symbolic.
• Individuals or groups engaged in artistic activities.
• Advertising promotions.

Indigenous rights

A specific mention is made of the rights of the indigenous communities, which are covered in the Federal Law for the Protection of the Cultural Heritage of Indigenous and Afro-Mexican Peoples and Communities. Although this law does not introduce a specific legal protection figure, its objective is to recognize and guarantee the property rights of indigenous and Afro-Mexican peoples and communities over the elements that make up their cultural heritage, their traditional cultural knowledge and expressions, as well as the collective intellectual property with respect to said heritage.

Designations of origin

As a result of the protection granted by the Federal Law for the Protection of the Cultural Heritage of Indigenous and Afro-Mexican Peoples and Communities, indigenous communities may apply for their crafts to be covered by a designation of origin.

License agreements

Common provisions contained in license agreements include those relating to:

• Copyrights/trademark (scope).
• Product approval.
• Permitted/non-permitted sourcing countries and prohibited persons.
• Code of conduct for manufacturers.
• Facility and merchandise authorization.
• Eco-friendly raw materials authorization.
• Product integrity.
• Insurance.
• Labor.
• Delivery (shortfall/surplus, applicable incoterm).
• Transportation.
• New development (i.e., digital innovations/non-fungible tokens).
• Guarantee and return policy.
• Labeling.
• Certificates of authenticity.
• Customs clearance.
• Possible infringement.
• Confidentiality.
• Non-transferable/the inability to assign the agreement to any third parties.

Non-disclosure agreements (NDAs)

Common provisions contained in NDAs include those covering:

• Confidential information definition.
• Non-disclosure.
• Purpose of disclosure.
• Channels approved for disclosure (authorized ways any information may be shared).
• Need-to-know (exceptions to confidentiality/public information/legally required disclosure).
• Term and confidentiality obligation period.
• No transfer of rights.
• Security measures to handle confidential information.
• Return of information.
• No warranties concerning accuracy or completeness of information.
• Equitable remedies.

Subcontract agreements with suppliers/in-house manufacturing

Common provisions contained in these agreements include those covering:

• Authorization with no transfer of rights.
• Product approval.
• Permitted/non-permitted sourcing countries and prohibited persons.
• Code of conduct for manufacturers.
• Facility and merchandise authorization.
• Eco friendly raw materials authorization.
• Product completeness.
• Insurance.
• Labor.
• Delivery (shortfall/surplus, applicable incoterm).
• Transportation.
• Warranty and return policy.
• Labeling.
• Certificates of authenticity.
• Possible infringement.
• Confidentiality.
• Non-transferable/the inability to assign the agreement to any third parties.

Agency agreement

In Mexico this is known as a “sales agency agreement” whereby the “sales agent” agrees to carry out, whether or not on a continued basis, any acts and transactions on behalf of a third party in its capacity as an independent intermediary, assuming no liability for the results of such activity (unless otherwise agreed) in exchange for a consideration or fee.

This type of agreement is expressly governed by Title Three, Chapter I of the Commercial Code of Mexico.

In this case, the sales agent agrees to follow the instructions received from the client. Under no circumstances may the sales agent act contrary to the provisions of the agreement.

Selective distribution online in high-end fashion and trademark protection

Selective distribution agreements are executed based on the reputation associated with a trade name identifying the point of sale or trading channel. They specifically include the following provisions:

• Authorized points of sale or specific distribution channels (including provisions related to e-channels such as the metaverse).
• Appointment and authorization of sale.
• Conditions of sale.
• Facilities and/or furniture (trade dress).
• Electronic security.
• Competition within the authorized point of sale.
• Display of products for sale.
• Staff (training, operation).
• Approval procedure of new points of sale.
• General conditions of sale.

Co-branding and co-marketing

Some of the most important provisions of these agreements include those relating to:

• Authorization or license of the use of distinctive marks between the parties.
• Handbooks or guidelines for the use of trade dress for such distinctive marks.
• Definition of the use of beneficiary trademarks for the sole and exclusive benefit of the holder.
• The degree of liability of each trademark holder to consumers, with respect to the supply offered to the general public and the responsibility for compliance with warranties provided, if any.

Franchising and alternative sales model agreements

In the case of franchises, corner store agreements, consignment store agreements, pop-up stores and flagship stores, there are common provisions, such as those concerning:

• Trademark licensing.
• Standardization of operating, trade and administrative methods.
• Definition of location or territory (distribution channels, including digital channels and the metaverse).

“Trade dress” is the main target of protection and licensing because the location or venue where a product is sold or where services are provided must be fully relatable to the brand and the business must be operated identically, regardless of the location of the venue.

Employing fashion models

The following types of agreements are typically used in relation to the employment of fashion models:

• Modeling services agreement.
• Image use and exploitation agreement.
• Professional services agreement.
• Authorization letter.
• Disclaimer letter regarding the use of an image.

Some of the provisions contained in the above-mentioned documents include:

• Identification of the individual.
• Scope of authorization (i.e., territory, product/service, seasonality, exploitation channels).
• Activities to be carried out.
• Consideration.
• Events of default.
• Indemnity in the event of default.
• Title of the finished work.
• Rights transferred and reserved by the model with respect to their image and activities to be carried out.
• Model restrictions (i.e., lifestyle or public demeanor, change of image, involvement with competing products/services).
• Final authorization by the employee regarding final works.
• Use and exploitation of non-final works.
• Confidentiality.

Social media, influencers and brand ambassadors/celebrities

In relation to social media, influencers and brand ambassadors/celebrities, agreements should contain provisions on the following:

• Product or service to be represented.
• Exclusivity.
• Scope of social media/minimum followers required.
• Characteristics of the service (i.e., number of posts, time, content).
• Non-compete with similar products/services.
• No misleading information or comments that may damage the service or product subject matter of the agreement.
• Production and scope of support if any.
• Special features to be emphasized.
• Influencer restrictions (i.e., lifestyle or public demeanor, change of image, involvement with competing products/services).
• Title of resulting content.

Advertising standards, relevant authorities and advertising practice

Issues can arise in the fashion industry regarding labeling and misleading advertising. Consumers have the right to receive clear and accurate information about the products they are buying; thus, fashion brands must adhere to certain rules in regard to the information they include on labels and in advertising.

The Federal Consumer Protection Agency of Mexico (PROFECO) is the competent authority regarding advertising activities and oversees protecting consumers from misleading and abusive advertising, and coercive and unfair commercial methods, as well as against abusive or imposed practices and clauses in the supply of products and services (Article 1, section VII of the Federal Law on Consumer Protection). However, the Federal Law on Industrial Property Protection also provides protection to all consumers.

Information or advertising related to goods, products or services disseminated through any means or form must be truthful, verifiable, clear and free of text, dialogue, sounds, pictures, brands, designations of origin and other descriptions that induce or may induce error or cause confusion by being misleading or abusive.

Chapters V and VIII bis of the Federal Consumer Protection Law define the rules on sales out of a business location, including remote or online sales.

These transactions are subject to the following rules, at a minimum:

• The supplier must process the information provided by the consumer confidentially and securely using any technical resources available.
• The supplier must provide information to the consumer on filing complaints or requesting clarifications.
• The supplier must avoid deceiving trade practices regarding the characteristics of products.
• The consumer is entitled to know all about the products/services offered by the supplier.
• The supplier must respect the consumer’s choice of purchase.

Suppliers offering, marketing or selling goods, products or services using electronic, optical or any other technology must observe the provisions of the Mexican Standard issued by the Ministry of Economy.

The Federal Law on Industrial Property Protection contains specific provisions aimed at protecting store layout, such as subsection VII of Article 172, which states that the following can constitute a brand: “The plurality of operational or visual elements, including, but not limited to, size, design, color, layout, label, packaging, decoration or any other elements that, when combined, differentiate products or services in the marketplace.”

These elements also form part of the definition of a franchise as set out in Article 245 of the above law.

In turn, the Federal Law on Copyright provides for store layout protection under the concept of design or architectural works, while software is considered a work of art when it can provide digital alternatives to trade products, including the metaverse.