Fresh case may force IMPI to reconsider stance on e-signatures

Handwritten or ‘wet’ signatures have been required to execute documents or to enter into contracts for hundreds of years. However, the ongoing pandemic has compelled businesses and individuals to rapidly adapt, with many businesses turning to new digital solutions, including e-signatures.

Although the e-signature already existed before the pandemic, for example, in agreements entered into online by clicking ‘I agree’ buttons, its use has increased significantly. Some government organisations that had been reluctant to accept e-signature in the past now have had to allow them.  

In Mexico, the use of digital signatures is recognised and accepted in most transactions by several laws, although there is no one law that regulates their use. In 2000 and 2003, the Civil and Commerce Codes were the first to establish and recognise the digital signature, and also to address their enforceability. Indeed, pursuant to these laws, an e-signature was valid to express consent and agreement in any legal act between parties.

In the Commerce Code, an e-signature is defined as “any electronic data included within a data message, or attached to, or logically associated to the same through any technology”. It can be used to identify the signer with respect to the data message and also to indicate that the signer approves the information contained within the date message. In addition, the code states that e-signatures have the same legal effect as a handwritten signature, and they are admissible as evidence in trial.

In general terms, digital signatures can be used for all types of transactions between private parties, as long as the transaction is not subject to a specific regulation. In addition, some governmental agencies have recognised the legal effect of digital signatures and have established mechanisms that allow individuals to access certain information and file certain documents. For example, the e.firma is a fiscal e-signature that enables the taxpayer to review their fiscal information and submit their fiscal declaration, but it is also recognised by other agencies, including the Mexican Institute of Industrial Property (IMPI).

Indeed, users can now file a trademark application online or submit written arguments (in some cases only) by using e.firma. Most recently, and deriving from the current pandemic, several online services were established to enable the filing of renewal petitions, declarations of use, oppositions, assignment agreements and some written arguments, which could formerly only be filed on paper. At present, most of the services provided by the IMPI can be signed electronically and the e-signature is legally binding.

Notwithstanding this, the IMPI is still reluctant to recognise and accept e-signatures in some documents, for example, power of attorney, assignment agreement and any other contracts between private parties – although the legal effect of these types of contracts has been recognised and accepted in some laws and by other entities. Mexican tribunals have also rendered decisions in which the legal effect of the e-signature was recognised.

In one case (I.3o.C.263 C) the Circuit Court of Appeals considered that, although wet signatures create a legal bond between the parties that have entered into a contract, digital signatures allow them to perform commercial operations, particularly when they cannot be physically present.

In order to be legally binding, but also recognised, e-signatures need to comply with some basic requirements:

• the creation data of the signature needs to correspond exclusively to the signer;
• the creation data of the signature needs to be under the exclusive control of the signer;
• it is possible to identify alterations to the electronic signature occurred after the moment of the signature; and
• it needs to contain a digital certificate applied by a government-approved certification service provider.
   

In the decision at issue, the magistrates considered that the reliability of the e-signature provides certainty to the person who uses it. Therefore, an e-signature is considered as a valid and certain source of obligations.

In light of this, the fact that the IMPI does not recognise and accept e-signatures for some documents is questionable, especially considering that the Industrial Property Law does not provide that only handwritten signatures are acceptable. For this reason, and considering the recent changes in doing business, we expect that the IMPI will adapt its point of view to the current reality, and accept e-signatures for all types of documents.