February 1, 2019
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MEXICO: MANTECADAS + CONCHAS = When a Neologism Goes Viral
Josué Rivera Arriaga, the owner of El Manantial, a small bakery in Queretaro, Mexico, introduced a new product on August 20, 2018, that combined two of Mexico’s most popular baked goods: “mantecados,” known internationally as cupcakes, and “conchas,” a sweet chocolate or vanilla-flavored bread in the shape of a shell (concha in Spanish). He named his creation “manteconchas,” and the creativity of the product went viral through social media.
Shortly after the birth of the new delicacy, the Mexican Intellectual Property Office received several trademark applications for the marks MANTECONCHA and MANTECONCHAS for goods in Class 30, even though the term was popularly known to have been “invented” by Mr. Josué Rivera. Among them, the first applicant was the Mexican company GRUPO BIMBO, which filed application number 2090178 for the mark MANTECONCHA on August 17, 2018.
BIMBO rapidly came under attack on social media, and, just 10 days after filing, it withdrew its application.
If the application had been processed, BIMBO could have faced challenges from the term’s creator who was in a position to prove first use. BIMBO, however, indicated that the company withdrew the mark because it did “not have a plan to produce or trade that product and to avoid wrong interpretations.”
Mexico is a first-to-file jurisdiction; however, the law provides the possibility of bringing a cancellation due to an earlier use in Mexico or abroad and to defend an infringement due to an earlier use in Mexico.
In the case of the mark MANTECONCHAS, the other applications are still pending; however, they have been opposed.
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