Mexico moves toward tougher criminal IP enforcement with new commercial-scale test

Mexican Senate committees have approved, with modifications, a presidential bill that would significantly change the framework for criminal enforcement of intellectual property rights, including by introducing a quantifiable “commercial scale” threshold for certain offenses.

The joint Senate committees on Justice, Economy and First Legislative Studies approved the revised bill on September 23. The measure was then sent to the Senate’s governing board and received a first reading. It has not yet become law.

The proposal would amend Mexico’s Federal Criminal Code and Federal Law for the Protection of Industrial Property, expanding and modifying a range of criminal provisions relating to copyright, industrial property, technological protection measures, and other IP-related conduct.

170-UMA commercial-scale threshold

One of the central changes would be the introduction of a defined commercial-scale standard.

Under the proposed provisions, the economic threshold for commercial scale would be 170 Units of Measurement and Update (UMA), calculated according to the public retail price of the legitimate product or service. The threshold is approximately MXN19,943 at current UMA values.

The proposal would also allow values from separate shipments to be aggregated where individual shipments do not reach the threshold. The amounts could be accumulated where shipments take place within a period of up to 90 calendar days, and there is coincidence or a connection involving the sender, recipient, delivery address, or distribution network.

The mechanism could therefore be particularly significant for online marketplaces, cross-border sellers, and supply chains using multiple lower-value shipments, because individual parcels that fall below the threshold could potentially be considered together where the statutory conditions are satisfied.

Copyright penalties

The proposed reforms would introduce or increase criminal penalties for a range of copyright and related offenses.

Among the provisions carrying a proposed four-to-10-year prison sentence, together with fines, are commercial-scale production, reproduction, importation, exportation, storage, transportation, distribution, sale or leasing of copies of works, phonograms, video-grams, or books protected under Mexico’s Federal Copyright Law. The proposed framework would also address certain commercial sales conducted through physical or electronic channels and organized, systematic, or repeated activity.

The bill would additionally create an offense concerning the unauthorized disclosure or distribution of protected works before their official release.

Other proposed amendments would address the circumvention of technological protection measures and the commercialization of devices or services designed to evade those measures. The reforms would also expand the circumstances in which legal entities could face criminal consequences for specified IP offenses.

Government identities and official signs

A separate provision concerning the unauthorized use of government identities and signs was substantially revised during the committee process. The original proposal prompted concerns from opposition legislators that its wording could potentially affect memes, parody, caricature, and other forms of expression using official symbols. The committees subsequently narrowed the provision and reduced the proposed prison term.

Under the revised version, the proposed offense would concern the commercial-scale use, reproduction, imitation, or incorporation of the institutional graphic identity, electronic domains, or other official signs of public institutions at the federal, state, or municipal level, where the conduct is intended to induce deception in order to commit an offense.

The proposed penalty was reduced to one to five years’ imprisonment, together with a fine of between UMA 1,000 and 10,000.

Implications for enforcement

The proposed shift toward a quantifiable commercial-scale threshold could alter how certain criminal IP cases are assessed. Rather than relying solely on evidence concerning the economic motive behind particular conduct, the proposed framework would provide a defined monetary threshold and, importantly, a mechanism for aggregating connected shipments over a 90-day period.

For rights holders, evidence establishing the public retail price of the legitimate product or service could therefore become particularly important when determining whether conduct reaches the proposed threshold.

The aggregation mechanism may also be relevant to enforcement involving fragmented distribution models, including small-parcel imports and online sales, although the precise practical effect would depend on how the provision is interpreted and applied if enacted.

The reform is presented as part of an effort to strengthen Mexico’s IP enforcement framework and meet international commitments, including those under the USMCA and TRIPS.

The proposed changes come against a backdrop of increased Mexican enforcement activity against alleged counterfeiting. On September 13, Mexico’s Institute of Industrial Property (IMPI) and the Navy reported that 90,535 allegedly counterfeit products had been seized during 21 operations across five states, with an estimated value of MXN 8.22 million. The seized goods included clothing and other products bearing unauthorized trademarks or protected character images.

Bill remains subject to further legislative steps

The reform has not become law. Following committee approval and first reading, the bill must still be considered by the full Senate. If approved, it would then proceed through the remaining legislative process, including consideration by the Chamber of Deputies, before it could enter into force.

The text could therefore still change. For brand owners, copyright holders, and businesses operating in Mexico, the proposed 170-UMA threshold and 90-day aggregation mechanism are likely to be among the most important provisions to monitor as the bill progresses. If enacted in substantially its current form, the mechanism could bring connected lower-value shipments within the scope of the proposed commercial-scale standard even where no individual shipment reaches the threshold.

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