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Article 181 of the Mexican Law of Industrial Property (MLIP)
establishes that when a trademark application is filed by a legal
representative, the legal capacity of the latter must be proved
through a power of attorney signed by the applicant.
Recently, an amendment to article 181 was enacted whereby it
allows the possibility of filing a trademark application without a
power of attorney. The only requirement is to state under oath that
the person filing the application on behalf of the applicant is his
legal representative.
The rationale under this amendment is the fact that, according
with the MLIP, the validity of a trademark registration cannot be
challenged under the grounds that the legal capacity of a
representative was not properly proven. Thus, if this is not a
cause under which a trademark registration can be challenged, the
legal representative should be able to file a trademark application
on behalf of a third party in a bona fide manner, by stating under
oath that he is, in fact, the legal representative for said
part.
As a clear and evident benefit that this amendment provides, we
can now mention the possibility of filing a trademark application
without the need of asking the client for a power of attorney,
which in some cases may delay the filing, especially when dealing
with foreign applicants. As well, it will save costs for the client
when having to make late filings of these documents.
A further benefit is that the issuance of official actions from
the Trademark Office, in relation with the power of attorney -
requesting some missing data or simply submitting it - will be
avoided. By these means, we believe it is very likely that a
trademark application will be examined faster.
Now then, although this amendment provides certain benefits,
there is also a downside to it, which in our opinion should have
been foreseen before its enactment.
As mentioned before, this amendment allows filing a trademark
application without a power of attorney by simply stating the legal
representative under oath. However, it also states that this legal
representation can only be performed by only one person. In other
words, the person that states under oath to be the legal
representative will be the only one allowed signing further writs
during prosecution as well as any other writs after registration
has been achieved. This situation does not mean at any moment that
another person cannot be appointed as a legal representative.
However, as clearly stated within the new amendment, any person
apart from the one who signed the application papers in the
beginning will have to prove its legal capacity with a power of
attorney in the terms of our Law in order to also file writs or any
other promotion on behalf of the applicant.
Under the above scenario, if by any urgency, the person who
signed the application papers cannot sign a further writ, for
instance the response to an official action - that of course
involves a deadline -, another person will have to prove his legal
capacity through a power of attorney in order to be able to sign
said writ. This fact will lead us to the situations that were
intended to be avoided with such an amendment.
Therefore, even though this amendment provides certain benefits,
it is our opinion that it should be revised in order that it allows
more than one person to be able to state under oath the legal
representation of an applicant.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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