BY JAY WEAVER | Miami Herald
The trademarks for two famous Cuban brands—Havana Club rum and Cohiba cigars—could be sold to the highest bidder if a Miami-Dade family who lost a loved one to Castro’s firing squad prevails in court.
Relatives of the late Bobby Fuller, who won a $100 million wrongful-death judgment against the Cuban government, urged a Miami-Dade circuit judge Tuesday to order the sale of Havana Club, Cohiba and 12 other Cuban trademarks to help satisfy their award.
Their legal move will spark a sure-fire controversy, because litigation over Cuban trademarks registered in the United States since the 1963 trade embargo against Cuba has been especially hot over the past decade—particularly involving Havana Club rum.
The Fuller family’s lawyers, Roberto Martinez and Karen O. Stewart, are urging the judge to bring three Cuban entities into court to establish their ownership of the 14 trademarks. The Cuban companies are Cubatabaco, which holds 12 of the trademarks, including Cohiba, Esplendidos and La Perla; Cubaexport, which owns the Havana Club mark; and ETECSA, the Cuban phone monopoly that owns the Calls2Cuba mark.
The lawyers want Miami-Dade Circuit Judge Thomas S. Wilson Jr. to order the Cuban companies to attend a ``show-cause’’ hearing to explain why their trademarks should not be auctioned at a ``public sale to the highest bidder’’ to help satisfy the family’s judgment, according to court papers filed Tuesday.
The aging siblings of Bobby Fuller, executed in 1960 after a botched invasion of Cuba, argue that a 2002 U.S. law benefiting victims of terrorism gives them the right to go after Cuban trademarks to help pay for the wrongful-death judgment.
The family’s trademark bid comes as their lawyers separately seek to garnish from U.S.-licensed phone companies their payments of millions of dollars to Cuba for long-distance phone service between the United States and the island.
Their novel legal move in going after trademarks raises more questions than it answers.
For one thing, the value of the trademarks registered in the United States is unclear. Cuban-made products cannot be sold here. The trademarks’ highest value would be based on a post-embargo marketplace—a possibility that appears closer under the Obama administration.
It is also not clear whether the three Cuban entities can claim ownership of their 14 trademarks in dispute. A 1998 U.S. law prevents Cuban trademark owners from renewing their trademarks in the United States if they were confiscated along with companies nationalized by the Cuban government.
The latest impact of that law: In March, a federal judge in Washington dismissed a lawsuit filed by Cubaexport after the United States denied the renewal of Cuba’s 1976 trademark rights for Havana Club rum. The U.S. Treasury Department’s Office of Foreign Assets Control refused to renew Cubaexport’s trademark for Havana Club in 2006.
Cubaexport is appealing. Its loss marked a victory for Bacardi U.S.A., the Puerto Rico-based distiller, which has fought hard to control the Havana Club name in the United States.
``Havana Club is not an asset of the Cuban government,’’ Patricia M. Neal, spokeswoman for Bacardi U.S.A., said in a statement.
According to Bacardi, Havana Club was developed in 1935 by a family-owned Cuban company, Jose Arechabala, S.A. After the Cuban Revolution in 1959, Fidel Castro’s government seized the family’s company and trademark, and started to produce rum under the Havana Club label. Bacardi bought the original rum recipe and the Havana Club name from the Arechabala family in 1994.
The famous Cohiba brand also has been mired in legal disputes. Although most people think of Cohiba as a Cuban cigar, a stogie by the same name has been manufactured in the Dominican Republic and sold in the United States for 28 years. It is the only Cohiba that is legal to buy in the United States.
An American company, General Cigar, first registered the Cohiba name in the United States in 1981 and has successfully defended its ownership against a long-term Cuban challenge.