The Federal Law for the Protection of the Cultural Heritage of Indigenous and Afro-Mexican Peoples and Communities (hereinafter, the “Law”), published in the Official Gazette of the Federation (“DOF”) on January 17th, 2022, recognizes as collective cultural heritage the knowledge, expressions, symbols, designs, languages, art, music, traditional medicine, rituals, and other elements that form part of the identity of Indigenous and Afro-Mexican peoples. Communities have the right to decide how, when, and by whom their cultural heritage may be used. This includes the right to authorize or deny its commercial or institutional use.
Communities have the right to decide how, when, and by whom their cultural heritage may be used. This includes the right to authorize or deny its commercial or institutional use.
In this regard, any use or exploitation of collective cultural heritage (including the registration of trademarks, patents, designs, or any form of intellectual property) requires the free, prior, and informed consent of the community that holds the heritage.
Prohibition of Misuse or Cultural Appropriation
The Law recognizes and guarantees the property rights of Indigenous and Afro-Mexican peoples and communities over the collective intellectual property related to such heritage.
Likewise, it establishes coordination mechanisms among the National Institute of Indigenous Peoples (“INPI”), the Mexican Institute of Intellectual Property (“IMPI”), and other institutions to ensure the rights of the communities are respected throughout intellectual property registration procedures.
Current Criteria of the IMPI
IMPI may deny the registration of trademarks that include protected cultural elements if there is no evidence of authorization or consent from the corresponding community. This prohibition applies not only to trademarks containing descriptive elements but also to those with evocative content. This is in accordance with subsections IV and XV of Article 173 of Industrial Property Law.
Applicants must demonstrate that they have carried out a valid, documented, and community-approved consultation process with the holders of the heritage.
In the case of trademark registrations granted by IMPI prior to the entry into force of the Law, which may now fall under this prohibition, the competent authorities have indicated that such registrations will not be annulled in principle. However, it is strongly recommended to maintain the registration in force in order to avoid the need for a new application.
