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Written by Frank Herrera

Friday, 10 April 2009

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tobacco faqstobacco legislation

glossary  I am sitting at Gate 44 at the San Francisco airport waiting for my return flight to Miami. I spent the last few days at a trademark and internet law conference attended by notable trademark attorneys from around the United States and abroad. The speakers included top trademark counsel from Google, Yahoo!, Intel, Sun Microsystems, and leading intellectual property law firms.  The topics of discussion at the conference included the latest developments on trademark law as it relates to the Internet, such as cyber squatting, keyword advertising liability, and online sales of counterfeit goods.

 

 

The conference was held near Fisherman’s Wharf, just a few blocks from a small cigar shop that had a large sign outside that read “Mmmm … Great Cigar! Looks like a Cuban, Feels like a Cuban, Tastes like a Cuban, but it’s legal, it must be ours.”  Strange sign, but a nice reminder of my favorite things.   


Like most attendees, I checked my Blackberry numerous times throughout the day, keeping in touch with clients and the office.  Apart from email, I would periodically check my traffic hits for my blog www.cigarlaw.com.  This blog is a marriage of my two loves, trademark law and cigars.  The two have been related since at least as early as the first time that paper bands were introduced into the design of cigars in order to distinguish brands. 

Although the sole purpose of my trip to San Francisco was to attend this conference, I did find time to travel to Sonoma and Napa valley.  While standing in a vineyard in the Sonoma countryside smoking a GUANTANAMERA, my favorite Miami boutique cigar, it occurred to me that the wine and cigar industries share many things.  While I’m no oenophile, I understand that the quality of wines is determined by a variety of factors, but in large part to the terroir of the primary grape used in the wine.  It follows that geographic appellations are important factors for product marketing.  Some common United States wine appellations include: Napa Valley, Russian River Valley, Paso Robles, Carneros, Sonoma, and the like.  Just think, twenty years ago the mere mention of U.S. wine production produced a snicker since France, Italy, and Germany were traditionally the sources of quality wines.  Likewise, once upon a time, Cuba was to cigars what France was to wines.  It was the monopolistic leader of cigar production and distribution throughout the world.  No doubt Cuba still makes some of the best cigars in the world.  However, cigars produced in a number of other countries are finally getting their day in the sun.  Nicaragua, Honduras, Ecuador, the Dominican Republic, and even Brazil are producing some of the best smokes available today.


Anyone that has been following the cigar industry for the past couple of years may have noticed that Corporacion Habanos, S.A. has been extremely aggressive in filing oppositions and even lawsuits against companies that use the word “HABANOS” or other similar marks as used in connection with cigars.  In doing so, Corporacion Habanos (and related Cuban entities) has/have put forth two basic arguments: (1) Cuba makes the best cigars in the world; and (2) cigars marketed in the United States bearing the term “HABANOS” (and other marks) mislead the United States consumer into believing that the cigars bearing such terms originate from Cuba. 


Like most Cuban ideology and world perspective, both arguments are out of date and completely out of touch with reality.

 First, even a cursory search of the top cigar websites and magazines reveals that several countries are consistently rated as producing top cigars, above Cuba. 

 

 


Second, the Trademark Office records indicate a large number of trademarks which include the term “HABANOS” indicate that the applicant offered a translation for the word “HABANOS” as simply meaning “cigar.”  Thus, the term “HABANOS” has suffered what we call in the trademark world “genericide,” just as aspirin, thermos, and others were once trademarks but later became generic terms for the respective products.  Just peruse your favorite cigar websites or magazines and you will see ample generic usage of the term.  Moreover, while the Trademark Trial and Appeal Board has yet to adopt this next point, the pragmatic reality of the marketplace is that United States cigar consumers are distinctly aware that Cuban cigars are not available for sale in the United States.  The United States Department of Treasury even produces periodic “reminders” and “updates” as to United States policy on Cuban cigars.  Thus, no one would be confused to think that the use of the term “Habanos” on a cigar would mean that the cigar comes from Cuba.  It’s ridiculous to think otherwise.


Just as the European wine industry experienced tension and growing pains as United States wine producers gained international accolades, the Cuban cigar industry must face market realities that they are no longer the world leader in cigar production and cigar quality.  In fact, the lifting of the Embargo (whatever that means) will not, can not return Cuba to its glory days.  The cigar industry has taken root and gained force in many of the countries mentioned above, and there is no indication that they will go out of business if the embargo is lifted.  They are gaining notoriety and accolades for producing quality products that the United States cigar aficionado has grown to accept and love. 


As the world becomes more wired, there is no doubt that the simple pleasures offered by cigars will remain in demand.  This is something that Cuba will never understand, the world changes, the market changes, you must change or risk extinction. 

 

 

Frank Herrera is a partner in the law firm ROTHSTEIN ROSENFELDT ADLER and is chair of the firm’s intellectual property department.  He concentrates his practice on trademark issues.  He is also the author of www.cigarlaw.com a blog dedicated to trademarks and other matters of interest to the cigar industry.  




Comments 

 
0 # Cuban BrandsKenneth Singletary 2009-04-09 19:32
I wonder what effect the end of the Embargo would have on the many non-Cuban cigars who have adopted the names of distinctly Cuban brands. For example, your Guantanamera you mentioned you enjoyed. Why must the non-Cuban producers label their cigars with Cuban names? It seems that no sooner does a new Cuban cigar appear tan their is an immediate brand name clone. One of my favorite cigars is the Honduran El Rey Del Mundo. This cigar would be a fantastic cigar no matter what they called it. Why must it have a Cuban name? What will it be called when the Embargo ends. Just thoughts.

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0 # Isabela Cigar Company -MiamiRicardo Ortiz 2009-04-11 14:22
I find it intersting that there is so much "fuss" over legal trademarking- Guantanamera is a city/state in Cuba, as is Los Angeles-imagine if Los Angeles sued anyone that used Los Angeles in their name ?? Look at all the fuss generated by cuba cohiba and General cigar-lest anyone forget that the much sued on Cohiba logo was Vicente ortiz idea to use as a backdrop for Cohiba-comng from his brothers NY taxicab Tshirt !! If these guys speny half the time on their product than they do in court, cigar smokers would be much happier !! Long live the Miami-made Guantanamera and Isabela cigars-if their homes and factories werent taken by Cuba, maybe this would have all been avoided !!

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0 # atty at lawJeffery Gemmela 2009-05-18 12:14
I agree with Mr. Ortiz, and have issue with the U.S. courts opine that Cuba still maintains rights in America fifty plus years after Americans and Cubans lost all of their rights in Cuba. I also commend Mr. Ortiz for leaving such a great position as Castros personal tobacco blender, and coming to America, and have to say that I have enjoyed many of Mr Ortiz fine Miami Isabela cigars, Isabela Miami is a truly incredible cigar !!

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