MEXICO Law and Practice Contributed by: Carlos Hernandez, Roxana Aispuro and Luis Emilio Moncada, BC&B Law & Business
• order the withdrawal from circulation of: (a) objects manufactured or used illegally; (b) objects, wrappers, containers, packag - ing, paperwork, advertising material and similar articles that infringe an IP right; (c) signs, labels, tags, paperwork and similar articles that infringe an IP right; and (d) utensils or instruments intended or used for the manufacture, preparation or pro - duction of any of the articles specified in the above-mentioned three categories of items; • prohibit with immediate effect, the marketing or use of goods that infringes an IP right; • order the seizure of goods; • order the alleged infringer to suspend or dis - continue the acts that constitute the violation of an IP right; • order the suspension of the rendering of the service or the closure of the establishment if the above-mentioned measures are not suf- ficient to prevent or avoid the infringement of the IP right; and • order the suspension, blocking or removal of content or the ceasing of acts that constitute a violation of an IP right through any digital media, whether known or to be known. 7.2 Measures of Damages According to the FLPIP, compensation for the infringement of an IP right may be no less than 40% of the legitimate value indicator presented by the affected owner. The indemnity may be claimed, at the option of the affected owner, before: • the MIIP, once the respective administrative procedure has been concluded, under the terms of the FLPIP; or • the courts directly, in accordance with the provisions of the common legislation and
without the need for prior administrative dec - laration. In order to determine the amount of compensa - tion, the date on which the infringement of the right occurred and – at the option of the affected owner – any indicator of legitimate value pre - sented by the latter will be taken into account, including: • the value of the infringed products or ser - vices calculated based on the market price or based on the suggested retail price; • the profits that the owner would have ceased to receive as a consequence of the infringe - ment; • the profits that the infringer has obtained as a consequence of the infringement; or • the price that the infringer should have paid to the right-holder for the granting of a licence, taking into account the commercial value of the infringed right and the contractual licenc - es already granted. Finally, note that punitive damages can also be claimed. However, this will depend on the case, as the Supreme Court of Justice has stated: “Punitive damages are an exemplary sanction with preventive purposes, which seeks to dis- suade similar harmful conduct in the future; therefore, they do not apply in any case, but are an element that is linked to the injured right and the degree of responsibility of the tortfeasor, which may be added only when the seriousness of the conduct deserves a high degree of social reproach that justifies such sanction.” 7.3 Permanent Injunction Permanent injunction measures are not available for a successful trade secret claimant in Mexi - co – given that, once the infringement action is
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