Implementation of industrial property precautionary measures in civil courts.

October 01, 2025

The implementation of precautionary measures in industrial property matters through civil proceedings poses a significant problem: according to the Commercial Code, the use of trademarks on goods or services in commerce is a commercial act, and therefore the applicable precautionary measures must be those provided for in that code. However, it only contemplates two situations: the detention of persons and the seizure of property.

Unfortunately, these situations are not suitable for protecting a right derived from a trademark registration, since what is sought in these cases is the abstention from the use of an identical or confusingly similar name or distinctive sign in a commercial transaction.

To overcome this limitation, case law 1a./J. 27/2013 (10a.), with registration number 2003884 of the First Chamber of the SCJN, is applicable. It establishes that the restriction provided for in the Commercial Code regarding applicable precautionary measures does not prevent, on a supplementary basis, that the protective measures provided for in the Federal Code of Civil Procedure, which does provide for the appropriate precautionary measure for the protection of trademark rights, be applied.

Likewise, the provisions of the USMCA and the Political Constitution of the United Mexican States must be considered, from which it follows that there is concurrent jurisdiction in matters of industrial property and the obligation of the State to guarantee the application of effective provisional measures for the protection of these rights.

Consequently, the civil judge is empowered and competent to hear, process, and execute the precautionary measures requested in this context, provided that they are necessary to guarantee the protection of the trademark rights.

The application of a precautionary measure in accordance with the Federal Code of Civil Procedure may be ordered without the need for a hearing of the opposing party.

This is justified because the measures to “maintain the status quo” provided for in the aforementioned Code include those that involve the suspension of the execution of an act, which is consistent with the provisional measures contemplated in the Federal Law for the Protection of Industrial Property.

Once the measure has been enforced without a hearing, the judge may assess whether it should be lifted by submitting a counter-guarantee, in accordance with the criteria established in the specialized law.

In this situation, the judge has the power to assess and weigh whether the counter-guarantee offered has a disproportionate impact on the applicant in relation to the party bound by the measure, or whether it violates public order or the social interest.

Finally, if the measure was executed prior to the filing of the lawsuit, it must be ensured that the lawsuit is filed within the following three days, in accordance with the deadline set forth in the Commercial Code, since if this deadline is not met, the measure will lose its effectiveness.

In conclusion, it is recommended that the aforementioned legal provisions be applied simultaneously and supplementarily to overcome the obstacles presented by the implementation of civil precautionary measures in industrial property matters.