Last June 26, 2008, the influential newspaper “Milenio” (published in Mexico City) informed in the cover page the intention of the Government of Mexico City of registering as a trademark a drawing that reproduces the Winged Victory (widely known in Mexico as the “Independence Angel” or just the “Angel”) on the top of the Independence Monument in Mexico City.

As you may know, the Independent Monument is probably the best known landmark of Mexico City. The drawing that the Mexico City Government allegedly intents to register is already used in the government’s stationary and recent vehicle plates; now, the City administration wants to use the drawing in a campaign to boost tourism in Mexico City as well as on souvenirs, such as t-shirts, caps and cups.

Although I am in favor of the idea of using the monuments and the city symbols to promote tourism, the intention of registering as a trademark a drawing of the famous “Independence Angel” should not be taken lightly.

Of course, I am assuming that Mexico City’s government took all required measures to become the copyright holder of the drawing of the “Angel”. It is important to keep in mind that the purchase of the original work does not imply the transfer of the copyright associated to the work.

At first sight, the project of the administration of Mexico City seems quite questionable to me because two reasons:

1. The Government of Mexico City would be obtaining proprietary rights on a symbol of Mexico City, namely exclusivity rights on a representation of one of the most famous monuments of Mexico City.

If the Government of Mexico City gets the trademark registration on the drawing of the “Independence Angel”, using an identical or confusingly similar design on the same or similar goods to the ones stated in the registrations that the Mexico City Government would obtain would be trademark infringement.

In my opinion, all reproductions and images of the “Angel”, even a photographic picture, would be in risk of being considered confusingly similar to the registered trademark. If the Government of Mexico City registers the drawing of the “Angel” for clothing and headwear, it would automatically become the only one entitled to print the “Independence Angel” on t-shirts and caps and authorize third parties such use. As a Mexican citizen, I find it outrageous that the Government of Mexico City, or any other official entity, becomes the owner of the “Angel” as described above.

2. Another objection –purely technical- is related to the Federal Law of Artistic, Historic and Archaeological Monuments and Zones (Monuments Law). According to the law and a presidential decree, the Independence Monument and the “Angel” are Artistic monuments.

As a consequence, regardless that the copyright on the independence Monument and the “Angel” expired some years ago, the acknowledgment of such works as artistic monuments give the federal government the right to authorize or oppose the use in Mexico of images of the “Angel”, and even to collect a duty for giving the authorization.

On the other hand, the ownership on a trademark registration implies the right to license the registered trademark.

If the Mexican Patent and Trademark Office (MPTO) issues a trademark registration for a drawing of the “Independence Angel” in the name of Mexico City’s Government, it would automatically enter into a conflict with the authority of the Federal Administration in connection to allowing the reproduction and use of images of the “Independence Angel”, given that the City Government would have the right to license the registered trademark, regardless the position of the Federal administration.

From my point of view, there should not be a statute allowing the Mexican Federal Government to authorize and collect duties for the reproduction of artistic, historic and archaeological monuments not protected by copyright any long. However, it does not mean that registering a drawing of the “Angel” may not cause a potential conflict with the scope of rights of the Federal Government.

It would be quite interesting to know if the Government of Mexico City, or the author of the drawing of the “Angel” filed with the National Institute of Fine Arts an application for the authorization to the use of the drawing of the “Independence Angel”, and if there was any duty paid.

In any case, we will be alert to verify if the MPTO becomes aware of the technical problems that would imply registering a representation of the “Independence Angel” by the Government of Mexico City, and what the MPTO is going to do about it.

La entrada Registering the Independence Monument as a trademark se publicó primero en Reyes Fenig.