Protecting trade dress

Mexican IP law protects producers, manufacturers and service providers from having the distinctive features of their products copied, exploited or reproduced without the proper authorisation.

IP law allows the protection of products through distinctive signs, such as trademarks, trade names, slogans and appellations of origin. Such signs are used to distinguish each product or service from others of the same class or type.

While these four options may seem adequate to ensure protection, IP law still provides no protection for trade dress. 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 shop. This is considered trade dress, for which more specific laws are required in order to ensure protection in Mexico.

The only option for dealing with a third party which is infringing or copying trade dress in Mexico is to claim 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 IP legislation, including the necessary definitions, characteristics and scope of protection .

This is an Insight article, written by a selected partner as part of IAM's co-published content. Read more on Insight

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