Can 'degrading or offensive' marks really be registered?
Grow Your Business, Not Your Inbox
By Tanya Escamilla, Director of Technical and Legal Services at ClarkeModet Mexico
Both a brand, and the advertising around it, must be attached to ethics, following principles such as legality, truthfulness, honesty, fair competition, as well as respect and dignity. These last concepts, as basic principles, indicate that a brand should not communicate offensive words or images , nor promote attitudes of discrimination or denigration for reasons of nationality, economic condition, race, religion, gender, political preference, sexual orientation, physical characteristics or different capacities.
This is relevant in the context of the situation that arose a few weeks ago on social networks due to the publication of a photograph by one of the most important “influencers” in Mexico and Latin America. As a result of this post, the internet exploded against the content creator, and the eye of the hurricane focused on a decontextualized message - derived from the brand of a mezcal - in the midst of a reality in which we are increasingly aware of issues such as justice, impunity, femicides and gender equality.
In this sense, the brand of mezcal in question requested, in September 2018, the registration of the unfortunate phrase, to protect alcoholic beverages (except beers), being objected by the IMPI itself, which considered that it incurred the prohibition provided in the Article 4 of the Industrial Property Law, since it turns out to be a denomination whose ideological content violates morality. The official letter containing said objection was notified to the applicant trademark in October of that same year; however, the IMPI system indicates that said application is still pending.
Until today, the Mexican Institute of Industrial Property (IMPI) prohibits the registration of trademarks that include degrading or offensive words , considering that these go against morals and good customs. However, this has had an unexpected turn, since on June 1 the Federal Law for the Protection of Industrial Property was published, which will abolish the previous one and will be in force as of November 5 of this year, without Include such a prohibition.When reviewing the Federal Consumer Protection Law, we cannot find anything that refers either to the prohibition of denominations or to this type of advertising; Hence, our legislators are under the moral obligation to carry out the pertinent reforms where the registration of trademarks, advertising and even the commercialization of products bearing labels that may be considered offensive are prohibited.
Although the “youtuber” has publicly apologized, this photograph was kept for several days on his social networks –which has already been withdrawn–, and the phenomenon that it caused allowed us to observe the normalization that our society is giving to this type of messages , a situation that has also permeated the field of trademark registration itself.
Thus, until the use of degrading or offensive words is not remedied by our legislators, we must rely on the good judgment of creative teams and consumers who, respectively, discourage the creation and positioning of brands that promote offensive images or attitudes. discrimination.