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Limitations on advertising regulations

BY JUAN CARLOS VILLASEÑOR
MANAGING INTELLECTUAL PROPERTY, INTERNATIONAL BRIEFINGS, NOVEMBER 2009

The legal regulations of advertising in Mexico are not as developed as in other countries, which in practice provide infringers with more elements to construe their defenses against eventual challenges from competitors and/or consumers.

In addition, and since infringement actions with IMPI for unfair competition are only available when comparison between products or services take place, the legal venue to challenge the contents of advertisements is through the Mexican Association for Self-Regulation and Ethic in Advertising (CONAR) and/or with the General Attorney’s Office for Consumers (PROFECO).
CONAR is not a Court of Law but a private entity created by advertisers, advertising agencies and media companies to provide guidelines and rules for the responsible use of advertising media as well as to operate as a mediator between such parties. Members voluntarily agree to comply with the guidelines and rules. Accordingly, the resolutions of CONAR are not binding; however, its recommendations could have some impact among its members at a commercial level. Non-members of CONAR could simply disregard its resolutions and keep using the advertisements of interest with no legal consequences.
PROFECO is a public organism entrusted to promote and protect the interests of consumers. PROFECO can impose fines to infringers and order the removal of the advertisement of interest. PROFECO was created to protect consumers. Accordingly, the eventual challenge in case of advertisements would have to be filed by consumers, not competitors.
Due to the undeveloped nature of the regulations, normally these cases are subject to interpretation and the Authority has to be very cautious in determining a violation. Thus, the advertising regulation in Mexico needs to be modified to broadly protect competitors and/or consumers and to avoid radical changes of criteria from case to case due to subjective interpretations or to the interests involved.
Source: Managing Intellectual Property Magazine, Nov 2009.