By Esteban Israel | Reuters
The opening of a McDonald’s in Communist Cuba seems unlikely any time soon, even with U.S. President Barack Obama in the White House and the prospect of better U.S.-Cuba relations on the horizon.
But the fast food giant is one of many U.S. companies that have an estimated 5,000 products trademarked in Cuba, waiting for the day they might finally land on the island separated from the United States by the Florida Straits and a vast ideological gulf.
The list includes ubiquitous symbols of capitalism such as Nike, Visa, and Starbucks and some that might surprise, including former basketball stars Magic Johnson and Patrick Ewing and the caped crime-fighter Batman.
As recently as December the Cuban Office of Intellectual Property registered trademarks for new products for Coca-Cola, Google and Ford Motor Co.
Many U.S. trademarks date back to before the Jan. 1, 1959 revolution that put Fidel Castro in power and transformed the island from a capitalist U.S. ally into a communist foe.
Their names—among them Aunt Jemima, Timex, Quaker Oats, M&M’s, Polaroid, Kodak, General Motors, Texaco—invoke a time when Cuba was a consumer society with an affinity for U.S. goods, most of them unavailable since the U.S. imposed a trade embargo against the island in 1962.
The biggest wave of registrations came in the early 1990s when the Soviet Union, which subsidized Cuba’s economy to the tune of $4 billion a year, collapsed and Castro’s communist system seemed in trouble.
Cuban communism survived and since then the registration of U.S. trademarks has ebbed and flowed with the state of US Cuba relations, rising when they improved and falling when they worsened.
TENSIONS DURING BUSH ERA
The number of applications fell by 36 percent during the George W. Bush administration. His hard-line policies toward Cuba increased tensions between the two countries.
The advent of Obama is expected to bring a fresh look at Cuba from U.S. companies interested in opening new markets.
He is the first U.S. president in half a century who has said he is willing to talk with Cuba’s leaders, and he has promised to ease the trade embargo.
There has been a “marked increase in interest among major U.S. companies in the trade and investment climate in Cuba since the election of President Obama,” said Jake Colvin, Vice President for Global Trade Issues at the National Foreign Trade Council, which promotes rule-based trade.
If history is a guide, that interest will translate into another wave of new U.S. registrations in Cuba, but not until the global financial crisis has passed, industrial property experts in both countries said.
To a certain extent, U.S. companies which seek a Cuban trademark are betting on the future. Even with Obama in office, they do not expect the Cuban market, that has been mostly off-limits for 47 years, to open up overnight.
“There is no expectation by senior management of large United States corporations that a return to Cuba is imminent,” said John Kavulich, senior policy advisor for the U.S.-Cuba Trade and Economic Council, which monitors trade between the two countries.
But companies that already have trademarks are expected to keep renewing them every 10 years as required, both to keep their foot in the door and to protect against piracy.
Registering a trademark cost only about $1,500.
“They have to protect their rights. They don’t want to create another Taiwan 90 miles (144 km) from the United States—you don’t want people manufacturing (fake) Nike shoes there,” said Jesus Sanchelima, a Cuban-American lawyer in Miami who has registered numerous trademarks on the island.
BURGER KING AND BACARDI
The National Foreign Trade Council often cites the example of South Africa, where after the end of apartheid rule some U.S. companies such as Burger King found their trademarks had been registered by someone else. Regaining control over the brands took a lot of time and money.
“Protecting trademarks in the absence of trade is important to ensure that a company like Starbucks will be able to establish a business and maintain control of its reputation in Cuba in the future,” Colvin said.
Experts say the Cuban authorities have honored trademarks. When they found that some brands had been registered by people with no legal claims to them, they awarded the rights to the legitimate owners.
The biggest trademark dispute involved Bacardi, the rum maker which fled Cuba after the revolution and then years later laid claim to Cuba’s best-known rum brand, Havana Club.
The claim touched off a politically-charged legal battle between Bacardi and the Cuban government and its joint venture partner, French liquor giant Pernod Ricard, that is not yet fully resolved.
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Havana Journal Inc. is working on a site to cover this Cuban rum trademark dispute at HavanaClubRum.com.
Also, we have developed our Cuba Legal Services site to help people with legal issues and document retrieval in Cuba.
We are also covering the Cuban cigar Cohibas brand trademark dispute between the Cuban Cohibas and the “red dot” Cohibas from the Dominican Republic.