User-agent: * Allow: / Legal news, political opinion, Satire, and lawyer thinking by Tim Paynter, Attorney at Law: Manhattan District Court says no more cohibas

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Thursday, December 24, 2009

Manhattan District Court says no more cohibas

Most people think Cohiba cigars are made by Cuba or at least from original Cuban tobacco plants. Some say the tobacco for these premium cigars is smuggled into the country or that Cohiba cigars are brought into the U.S. through diplomatic back doors.

The truth is Cohíba was originally a private brand supplied exclusively to Fidel Castro and high-level officials in the Communist Party of Cuba. It was often given as a diplomatic gift, so says Wikpedia. Since Cohibas were not legally for sale in the U.S. it became a prized possession for those who could get their hands on one. In 1982 it was released for sale to the public, mostly in South America by Cubatobacco, a Cuban state owned company.

Meanwhile, some cats with lots on the ball realized Cubatobacco could not register the Cohiba name in the U.S. and appropriated the Cohiba name for their own company called General Cigar. Cubatobacco was left out in the cold since the embargo with Cuba prevented Cubatobacco from protecting it's brand name. Hence, there grew to be two Cohibas, one made in Cuba by Cubbatobacco and which undergoes an extra fermentation process. A second type of Cohiba is produced for General Cigar and is sold in the U.S.

If a decision by Manhattan Federal District Judge Robert Sweet is upheld, the Judge says there will be no more Cohibas made by General Cigar because it cannot continue using the Cohiba name. Instead, Cubatobacco has rights to the name under law known as the "famous marks doctrine", wherein a foreign company may retain the rights to it's trade mark even if it fails to register the name.

The "famous marks" doctrine was no doubt established through case law in order to protect trade marks of U.S. made products, since it is unfair to expect other nations to respect trademarks for U.S. products if the U.S. does not reciprocate. foreign trade marks which have not been registered since the same is expected of other countries regarding U.S. products.

Cigar aficionados who plan to buy the real Cohiba cigar made in Cuba should not hold their breath. While the court decision protects Cubatobacco's rights to the Cohiba name, it does nothing to assist the company import Cuban made Cohibas into the U.S. It is still illegal for US citizens to buy Cuban products no matter where they are found, including the infamous Cohiba cigar. However, the decision is a tiny step in Cuba's favor as the United States and Cuba rethink the wisdom of keeping Cuban products out of the hands of Americans, and American products outside the hands of Cubans.

The battle for the Cohiba name is not over yet. Judge Sweet stayed his order so that General Tobacco could appeal the decision, a likely event since the battle for the Cohiba name has been raging for 10 years.

Shakespeare said, a rose by any other name will smell as sweet, Cubatobacco says a cigar named Cohiba will never be as sweet as a Cohiba made in Cuba.

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