The Mexican Industrial Property Law (MIPL) has suffered several amendments this year that will strengthen our system and will make our country more competitive before other countries. One of the amendments that should not be overlooked is the one related to the declaration of the date of first use of a trademark within Mexican territory on the trademark application.
Before the amendments, it was not mandatory to declare a date of first use in the application papers. Therefore, it was possible to file the application without indicating any information, neither a date of first use, nor a declaration that the trademark was not yet in use. In this regard, in case the trademark application was filed by not establishing the date of first use, nor declaring that the trademark was not being used, the application was filed under the assumption that the mark was not in use, leaving in the safe side the opportunity to demonstrate a prior use of the mark during a litigation procedure, if eventually it was necessary.
If the date of first use of a mark in Mexico was declared, it was mandatory that the applicant held proof to support such declaration of use in connection with the intended goods or services in the specific class, just for the eventual case it turned necessary to prove the accuracy of the date of use during a litigation proceeding. Otherwise, if the company did not hold such proof, it was advisable to file the application without indicating any date, since such information could not be amended at a later stage. In this regard, if a date of first use was declared, it was compulsory to provide the "Establishment address of the first use in Mexico".
According to the MIPL new amendments, which entered in force last August 10, 2018, if a trademark has been used in Mexico, date of first use must be declared in the filing papers since these amendments establish that "in the absence of indication of a date of first use, it will be understood that the mark has not been used", while the former previsions of the Law stated that "in the absence of indication of a date of first use, it will be presumed that the mark has not been used". According to the above, the applicant must hold evidences of the use of the trademark, such as invoices, brochures, catalogs, etc. issued by the applicant or by a licensee in Mexico...