"Pernod Ricard [and Cubaexport] knowingly purchased an interest in property that the Castro government illegally confiscated from my family and therefore has no legitimate claim to this trademark," said Jose Manuel Arechabala, speaking on behalf of the original Havana Club owners, the Arechabala Family.
In 1960, the Cuban government expropriated all of the Arechabalas' property connected to its rum business. The family then fled to the US and Spain. According to Stephen Kimmerling (1999)[PDF] and Perry, Woods & Shapiro (2000)[PDF], the Arechabala Family had evidently abandoned the Havana Club name from 1960 to 1974, when Cubaexport filed for the Havana Club registration. Perry et al. remind its readers that the Arechabala Family "neglected to renew the Havana Club trademark registration in the United States, although they could have done so with a Certificate of Excusable Non-Use." This is a very important point.
According to Kenneth Germain, a lawyer and professor of intellectual property who appeared before the Senate Committee on the Judiciary in 2004, US Trademark Laws rely on proper use of the trademark, and their constant renewal in order to "unclutter" the Trademark Register. Unfortunately, the Arechabala Family "allowed its pre-embargo U.S. Trademark Registration of HAVANA CLUB (for rum) to lapse by failing to file an appropriate and available post-registration document attesting to excusable non-use. Had this company acted appropriately, it could have maintained that registration. Because it did not, CubaExport, the record owner of U.S. Trademark Registration 1,031,651, was able to register HAVANA CLUB as a U.S. trademark for rum."
This is why section 211 exists. Bacardi-Martini Ltd. know that the Havana Club trademark was abandoned, and that if they ever had to go to court over ownership, they would lose to Cubaexport (Fidel Castro). Section 211 saves Bacardi from going to court, and allows everyone to hide behind the US embargo as an excuse. That's why the entire "stolen property" argument is irrelevant. And section 211 is but a fraud.
Just last month, reported in a few news outlets, a Spanish court made an important ruling. It was reported that a "Provincial Court of Madrid, Spain... rejected the Bacardi claims over ownership of the Havana Club rum." Part of the decision was based on the fact that "the Havana Club brand was never used by the previous owner and neither was it renewed when the time to do so expired."
It's a decision that Bacardi plans to take to the Spanish Supreme Court, but its doubtful it will win. Spain doesn't have a section 211, or an embargo. But, most importantly, its obvious that the Arechabala Family abandoned their trademark, and allowed it to expire under the laws of intellectual property around the world.
But, here we are, in the USA with our fake Cuban cigars and fake Cuban rum, all because of a fake policy towards Cuba. Not surprisingly, here in Miami, there are a lot of fake arguments about Cuba. And, I believe all this deceit can be remedied once the US embargo towards Cuba is gone, and only then will we begin to smell, taste, and see the real Cuba that has long been forbidden to the senses of reality.
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