Protecting non-visible signs
by Carlos Reyes
Trademarks are distinctive signs because they distinguish products or services from others of the same type or category in the market. Thus, no matter if they are composed by a word, a phrase, a design, a color or a combination of colors, sounds or even fragrances, trademarks are characterized and have to be defined only by this capacity of distinguishing products or services from other identical or similar in the market.
All other features or functions of a trademark, from guaranteeing consumers the identity of the origin of the goods or services -indicating that those with the same trademark originate from the same source- to assuring consumers the same quality, facilitating their decision, and all advertising functions, derive on their nature as distinctive signs.
This distinctive character justifies the exclusive right of use that it is granted to trademarks and also defines the limits of its protection. Thus, the denial of trademark protection for generic or descriptive terms, the specialty rule or the need of accepting suggestive signs are concepts that depend on this essential function of trademarks as distinctive signs.
In this regard, we find important to update the definition of trademarks contained in Article 88 of Mexican Industrial Property Law, which states that trademarks are visible signs that distinguishes products or services, same that excludes from protection several signs that are clearly distinctive, are actually used and perceived as trademarks and can be graphically represented, as for example, trademarks constituted by sounds.
This limitation of trademark protection to visible signs was justified in the past by the need of delimiting the granted right making clear the scope of protection to thirds and has no grounds to exist today, when the electronic means easily allow publication of these trademarks.