Amendment to the Industrial Property Law regarding inspection visits in Mexico
On January 27, 2012 the Decree by which several provisions of the Industrial Property Law and article 232 of the Federal Copyright Law were published in the Federal Official Gazette. Said decree contains a set of reforms related to the inspection visits that may be carried out during the same.
First, the Decree, through the addition of a second paragraph to article 183 of the Industrial Property Law, will permit that the proceedings of administrative declarations, the process and final resolutions issued therein, be notified to the parties via the courthouse bulletin board at the Mexican Institute of Industrial Property and through its publication in the Industrial Property Gazette, when it has not been possible to do so at the domicile of the petitioner.
As for the inspection visits themselves, the Decree adds the following:
Regarding the Industrial Property law:
- During the course of the proceedings the personnel assigned by IMPI to the inspection visits may take photographs or video footage or collect any other instrument considered admissible as evidence in terms of the Federal Administrative-Law Procedural Rules Act and the Federal Code of Civil Procedure.
- The photographs that are taken, the videos that are recorded and the other instruments collected may be used by IMPI with full probative value.
- In case the personnel assigned by IMPI is denied Access to the establishments where they manufacture, store, distribute, sell or offer for sale the products or services are provided, or if there was in any way opposition to the carrying out of the inspection visit, said circumstance would be recorded in the respective minutes and the facts alleged in the corresponding administrative declaration proceeding would be assumed to be true.
- The Decree establishes that if the person with whom the investigation was carried out or the witnesses do not sign the minutes, or deny to accept a copy thereof, or no witnesses to firm it come forward, said circumstances will be recorded in the minutes without that this affects their validity and probative value.
- In the minutes of the inspection visits will be recorded the information related to the event, including the report of any circumstance or fact that has been observed during the carrying out of the investigation, even if such circumstance or fact are not contained in the list of the inspection minutes, and mentioning whether photographs have been taken, video recordings have been made or other probative elements have been gathered during the course of the investigation. Said elements must be annexed to the corresponding minutes.
- Will be considered as administrative infringements: prevent access to the personnel assigned to carry out inspection visits and not providing information and data, without just cause, when IMPI requires these in the exercise of its powers related to the inspection visits.
- When the action or omission constituting the administrative infringement was knowingly committed, a fine will be imposed for the amount of double the fine imposed to the infringing conduct. The Decree establishes that it is understood that the action or omission was knowingly committed, when the infringer was aware of the rights of the holder, through the legends that refer to the ownership of an intellectual property right, from the Industrial Property Gazette, including the publications in national newspapers and notifications with acknowledgements of receipt.