MEXICO Law and Practice Contributed by: Victor Adames, Carlos Hernandez and Paola Becerril, Becerril, Coca & Becerril
To claim damages, the plaintiff must request them from the appropriate authorities or courts; damages will not be awarded ex officio. As for the amount of damages, the FLPIP establishes that compensation should not be less than 40% of the legitimate value indicator presented by the affected party. Meanwhile, the FCL establishes that compen - sation for damages due to copyright violations should, in no case, be less than 40% of the retail price of the original product or service involved in the infringe - ment. All damages resulting from an IP violation are gener - ally grouped under the term “damages”. There is one exception in copyright cases, where the affected party can request compensation for both moral damages and damages related to monetary loss. 10.3 Attorneys’ Fees and Costs Each party is responsible for paying their own litiga - tion costs, including government fees (if applicable), expenses, and attorney’s fees. However, in the case of an infringement action, if the plaintiff seeks to recov - er damages through a civil lawsuit, attorney’s fees expenses related to the infringement and compensa - tion for any damages and losses may be included as part of the damages caused by the infringer’s unlawful conduct. If the case is settled, it is possible to request reim - bursement for attorney’s fees and expenses, as well as compensation for any damage incurred. This reim - bursement is not automatic and is subject to the spe - cific circumstances of the case. 10.4 Ex Parte Relief To seek compensation for damages caused by an intellectual property violation, a notice of the corre - sponding infringement action or civil action must be served to the alleged infringer, in accordance with the process established by national regulations. There are non-litigation alternatives, such as a warn - ing letter, to seek relief from the alleged infringer. This
alternative is optional and will be subject to analysis to determine whether it is suitable in each case. 10.5 Customs Seizures of Counterfeits or Parallel Imports Customs authorities do not have any power to seize counterfeit goods or parallel importations; in fact, if counterfeit goods are detected at customs, the IP right holder must file the corresponding legal action before IMPI or the Attorney General’s Office, so any of these authorities can send an official communica - tion ordering the suspension of the free circulation of the imported goods and make them available to the competent authority in the warehouse designated by the authority for such purposes In order that customs authorities are aware of coun - terfeit goods, the Official Database of Mexican Trade Mark Registrations of the Mexican Customs was cre - ated. After a trade mark is recorded in said database and once customs authorities receive any type of merchandise, they will review if it complies with the Mexican regulation and if there is the presumption of counterfeit/infringing merchandise. Once customs authorities detect merchandise that is presumed to be counterfeit/infringing they will send an alert to the representatives of the trade mark holder, so they can file the corresponding actions against the merchandise. Please refer to 3.9 Refusal of Registration and 5.2 Legal Grounds for Filing an Opposition or Cancella- tion for discussion of the appeal process in Mexico. 11.2 Timeframes for Appealing Trial Court Decisions An appeal must be filed with the relevant adminis - trative or judicial authority within the specified time - frames. Regarding the types of appeals, a review recourse or an amparo appeal typically takes about six months to be decided. On the other hand, a nullity appeal is 11. Appeal 11.1 Appellate Procedure
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