MEXICO Law and Practice Contributed by: Victor Adames, Carlos Hernandez, Paola Becerril and Eduardo Saldaña, BC&B Law & Business
The defendant may oppose the preliminary injunctions by: • filing a brief showing a counter bond whose amount will be set by IMPI; • proving a least the appearance of an arguable right to exploit the relevant IP; and • showing that the harm that could be suffered by the person on whom the measures are to be imposed is greater than the harm that could be caused to the person requesting them. IMPI will decide if said measures are lifted or maintained. 10.2 Monetary Remedies Damages can be claimed through either a civil court or directly with IMPI (only for trade mark infringements and commercial copyright viola - tions). These damages result from proving and sanctioning an IP violation committed by a third party. 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 estab - lishes that compensation should not be less than 40% of the legitimate value indicator presented by the affected party. Meanwhile, the FCL estab - lishes that compensation for damages due to copyright violations should, in no case, be less than 40% of the retail price of the original prod - uct or service involved in the infringement. All damages resulting from an IP violation are generally 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 liti - gation costs, including government fees (if appli - cable), expenses, and attorney’s fees. However, in the case of an infringement action, if the plaintiff seeks to recover damages through a civil lawsuit, attorney’s fees expenses related to the infringe - ment and compensation 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 reimbursement for attorney’s fees and expens - es, as well as compensation for any damage incurred. This reimbursement is not automatic and is subject to the specific circumstances of the case. 10.4 Ex Parte Relief To seek compensation for damages caused by an intellectual property violation, a notice of the corresponding 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 warning 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 importa - tions; in fact, if counterfeit good are detected at customs, the IP right holder must file the corre - sponding legal action before IMPI or the Attor -
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