Arochi, Marroquín & Lindner claims contradiction of opinion with regard to legal interest to bring a proceeding for the administrative declaration of non-use cancellation

The Second Chamber of the Supreme Court of Justice has recently resolved the contradiction of opinion 357/2011, whose complaint was filed by our firm, based on two direct amparo rulings with opposed opinions, which were brought by us, the basis of which consists in determining the legal interest necessary to initiate a proceeding for the administrative declaration of non-use cancellation of a registered trademark before the Mexican Institute of Industrial Property (IMPI).

The resolution of the contradiction of opinion establishes that in order to initiate the proceeding for the administrative declaration of non-use cancellation, it is necessary to be holder of a legal interest, so it necessarily excludes those who have no more than a simple interest.

Therefore, according to the decision of the Second Chamber, the legal interest to enforce the non-use cancellation of a registered trademark does not necessarily derive from a subjective right in itself, but from a right that is enforceable against third parties, that is, if by reason of the trademark application an obstacle arises such as that before IMPI there is already a different mark registered that is the same or confusingly similar, this evidently produces the legal interest of the applicant to bring the proceeding for the administrative declaration of non-use cancellation.