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The plans of the Sedena are to open a new airline in charge of the military company ‘Olmeca-Maya-Mexica’.
This would operate at the Felipe Angeles International Airport (AIFA) and could ‘revive’ Mexicana de Aviación.
If the Army’s legal limitations are circumvented, the CMA brand per se would have two possibilities of being retaken.
Mexicana de Aviación has revived in the national conversation after Sedena’s intention to operate its own airline was revealed and President Andrés Manuel López Obrador put on the table the possibility of retaking the brand of what was the oldest airline in Mexico and the third oldest in the world. world; however, although there are still legal limitations for the Army to carry out this process, Regarding Industrial Property, there is a more open panorama, in which, even, anticipated movements can be speculated.
In recent weeks, the massive hacking of the Ministry of National Defense (Sedena) uncovered what would be a new federal megaproject in the airport market, dividing opinions on the economic viability and national competition that a state-owned airline would have in Mexico, but on everything, pointing out possible operations of the State with a private company that, in addition, is in litigation since its bankruptcy, in 2010.
In order to understand what this possibility represents, Merca2.0 carried out an investigation around the brand, in order to know the mechanism by which the federal government could choose to return Mexicana de Aviación (CMA) to the heights.
Mexicana de Aviación: its brand is in the crosshairs
To speak of Mexicana de Aviación is to speak of both the company and the trademark registered with the Mexican Institute of Industrial Property (IMPI), because we cannot confuse the company name of the brand that is used per se, mistake that has been made throughout the controversy surrounding the possible new state-owned airline.
And it is that, as he explains Daniel LegaspiPartner of Santamarina + Stetathe brand is only “Mexican”, Therefore, the Compañía Mexicana de Aviación, owner of it, can put the registry into operation and return to the market through Sedena or any other third party without legal impediment.
In fact, according to the IMPI search, Mexicana de Aviación has made “recent” movements with a trademark filed on February 19, 2021 and endorsed on October 4 of the same year. This is Mexicana Airlines, a brand that also belongs to Class 39, corresponding to the package and passenger transportation service.
“Although everyone calls it Mexicana de Aviación, the brand is Mexicana… in this case, seeing the movements of Compañía Mexicana de Aviación, we can say that they are going to operate as Mexicana Airlines.”
“To revive that brand, either through a license between the parastatal and Compañía Mexicana de Aviación, or through the purchase of all the brands owned by this company, the risks for Sedena must be analyzed before thinking about the acquisition or operation of a brand like Mexicana”, exposes the legal expert.
And it is that, analyzing with Daniel Legaspi Sedena’s background, outside the military framework, has shown a tendency and willingness to carry out brand operations from the Armed Forces, for example, with the National Bank of the Army, Air Force and Navy, SNC, Banjercito, or with the operation and establishment of the military company for mega public works, Olmec Mayan Mexicashowing that Sedena would have the pulse to “rent” brands to private parties, which would give meaning to the Government and avoid major investment risks in the face of the infrastructure that an airline requires.
“Given the history that the Mexicana de Aviación brand has, its movements in recent years and the conflicts that have been generated within this same company, it would have to be analyzed whether or not there is also a risk for Sedena, because in the end it would be using a conflicting brand. It would be necessary to see the procedures of the trials of Mexicana with the union”, says the lawyer.
The mapping also raised a question about the recent operations of Mexicana de Aviación on its website, since for years mexicana.com showed the Mexicana logo, referring to the airline, but in 2021 this changed. According to research carried out in Web Archive Orgwhich throws screenshots of internet pages and their movements day by day, Compañía Mexicana de Aviación stopped showing the identity of the airport brand on August 11, 2021, despite the fact that the domain was still in force until April 26, 2028.
How could they use the Mexicana de Aviación brand?
According to the specialist Santamarina + Steta, There are many variants of how Mexicana could operatethrough the simple line of “brand license”, granted to Sedena or its military company, or through a “brand purchase” for the Army.
In either of the two elections, in case the brand can be recovered and given to the new Sedena airline, they must approach the brand representative in front of the IMPI, that is, Alfonso Ascencio Triujequetrustee of Mexicana de Aviación and the liquidator who handles the controversies for the bankruptcy of the company and its creditors.
“Most likely, it is a license, where royalty payment conditions, temporality, scope for all the services protected by the trademark registration or only one are established… Mexicana could return as long as an agreement is reached with the owner of the brand.”
“One of the characteristics of the license is that you can determine if it is exclusive or not, the recommendation to Sedena would be that, if granted, it be exclusive, since it guarantees that Mexicana de Aviación is not going to deliver any other type of license to another operator”, refers the expert.
And it is that, in this hypothetical scenario, it would be convenient for Sedena to operate the active brand of Mexicana de Aviación, that is, Mexicana Airlines, by means of a license or authorization to use the brand, since this is a kind of contract that only makes it temporary operator.
Can Sedena operate an airline brand?
In constitutional terms, operating an airline is not as simple as the brand itself for the Ministry of National Defense (Sedena), something that Morena’s deputies have already glimpsed; For this reason, an initiative has been presented that would circumvent the legal limitations.
Currently, the Law does not allow having an airport and airline concession at the same time, as the federal government seeks to manage by 2023, since Sedena is already in charge of the Felipe Ángeles International Airport (AIFA).
However, the Morenista bench seeks to reform the Civil Aviation Law and the Airport Law, arguing that “the implementation of new airport companies is an ideal alternative for meeting the demand for air transportation, the development of economic opportunities and regions of the country.
This is explained to us by the expert Mariano CalderonPartner of Santamarina + Stetawho specializes in amparo, administrative and contentious judicial proceedings, involving constitutional, fiscal and administrative matters.
“As it is a law reform, only a simple majority is needed for it to be approved; however, its constitutionality is highly questionable because it is the intention to create an airline in charge of the Army, for two reasons: the Constitution is very clear, establishing that in times of peace the Army cannot carry out any activity or function that is not related to military discipline and operating a private airline, for commercial purposes, has no military relationship. This is a contradiction with what is established in the Constitution. Additionally, there are international treaties, to which Mexico is a party, that establish that military institutions should not have airlines, that is, commercial ones.”
“If this initiative is approved, it would contradict what the Constitution establishes, therefore, there is the possibility that some means of constitutional defense will be promoted, which will have to be analyzed by the Supreme Court, which could declare it unconstitutional,” explains the legal expert.
Article 9 of the Civil Aviation Law states that to provide the public service of regular national air transport, a license is required. concession, which is only granted to Mexican legal entities. In other words, the proposal seeks to establish the possibility that parastatal companies such as Sedena are also subject to airport concessions.
However, among all the adjustments that are requested to make the operation of a new airline operated by Sedena valid, the initiative must still be analyzed by the Board of Directors of the Chamber of Deputies and, later, turned over to commissions for their ruling.
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