Understanding reserva rights

July 8, 2010

BY LUIS C. SCHMIDT, PARTNER

MANAGING INTELLECTUAL PROPERTY, INTERNATIONAL BRIEFINGS, OCTOBER 2008

Reserva is an exclusive patrimonial right to authorize the use of titles of publications or broadcasts, names of artists or artistic groups, characters of fictitious or human nature, or so-called publicity promotions. By virtue of reservas, right holders can authorize or prohibit third parties from copying or imitating titles, names, characters or promotions (collectively referred to as the “rights”). Secondly, right holders can authorize or prevent the distribution of copies or imitations of the rights used in any tangible form or their public performance by any media, such as broadcasting or digital networks. Thirdly, reserva rights entitle their holders to either authorize or prevent the rights from being modified or transformed. The exclusive right to authorize or prevent can be assigned or licensed.
The Instituto Nacional del Derecho de Autor (INDAUTOR) is the competent authority to grant reservas. For that purpose, it keeps a docket system and follows an ad hoc administrative proceeding. Mexican Copyright Law sets the requirements and conditions for granting reservas.

The following is a description of the four categories of reserva rights:

1. Titles of publications or broadcasts. In general terms, titles identify literary or artistic works and act as an intermediary between the author and the public. Titles communicate or describe the content of works and have the ability to attract public attention to the work. Original titles applied to publications or broadcast can be the subject of reservas, but not the title of a work in general. In Mexico, the publishing or broadcasting industries – commercial or non-commercial industries without exclusion – seek ad hoc protection of titles, based on originality or other cultural standards. Banal or non-original titles are not afforded protection. The threshold is rather different from other forms by which commercial titles can be protected, such as trade mark rights.
2. Artistic names. An artist is anybody performing art or artistic activities and may include artistic interpreters, performers and authors of artistic works. The criterion to afford reservas to artistic names is similar to that of titles.
3. Characters of fictitious or human nature. Characters are those derived from the capacity of humans to represent, describe or imitate people, animals or imaginary beings. Characters are part of literary or artistic works but can sometimes be subtracted from the works. The Copyright Law has set a broad standard for protecting characters, as the standard is their physical and psychological characteristics or profile. Character reserva is broader in scope than trade mark rights, restricted to notions as distinctiveness and confusing similarity and to use of symbols in trade.
4. Publicity Promotions. The Copyright Law defines publicity promotions as “mechanisms” that are “novel”, by which “goods or services are “promoted and offered”, with the incentive to provide to the public and “additional” good or service in more “favorable” conditions than those “prevailing” in a given “market”. The notion of publicity promotions is ambiguous and the applicable standards so high and difficult to fulfil, that the figure has mostly fallen into disuse.