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Views From A Smoke-Filled Room
by Rich Perelman
Editor-in-Chief
Los Angeles, July 1 – Yesterday’s Views examined the legal tests used by U.S. District Judge Robert Sweet in granting Cubatabaco the U.S. trademark for the brand name “Cohiba.” Sweet wrote that Cubatabaco had a protectable mark in the name Cohiba because the cigar had been so completely identified with production in Cuba.
I would argue that cigar smokers in the American market recognized that Cohiba was a Cuban brand, but that few would be surprised if a Dominican-made or Honduran-made Cohiba showed up, as was the case with other Cuban brands such as Belinda, H. Upmann or Romeo y Julieta.
And General Cigar produced a Cohiba of its own, following its second registration of the mark in the U.S. in 1992. It sold well at Dunhill stores, but not in any great numbers compared to well-established brands sold there. Still, Judge Sweet concluded that the name was protectable because the renown of the Cohiba brand as a Cuban-made cigar was high at the time of General’s second registration in late 1992. It’s a close call.
But Sweet’s argument that there was, and is, a legal-level likelihood of confusion between the Cuban Cohiba and the General-produced Cohiba from the Dominican Republic reflects very little understanding of the U.S. cigar market.
He writes that “there must be a significant risk that the consumer will make a purchasing decision based not on the goodwill or reputed quality of the General Cigar COHIBA but on the mistaken association with the Cuban COHIBA.” He relies in making a decision in favor of Cubatabaco importantly on Dunhill buyer Mark Perez, who stated that consumers bought on name and not on “the band or the trade dress.”
I believe Perez to be mistaken here. In a country where consumers can purchase cigars with the identical name and trade dress as Cuban brands such as Partagas, Hoyo de Monterrey, Punch, H. Upmann and, of all brands, Montecristo, it is only the inexperienced or “newbie” who buys by name alone.
In compiling our Perelman’s Pocket Cyclopedia of Cigars for ten years, I have seen every imitation Cuban name imaginable and have fielded many calls from manufacturers asking who owns specific current or former Cuban trade names listed in our Perelman’s Pocket Cyclopedia of Havana Cigars. What sets brands with Cuban names apart for the U.S. consumer is the band and the trade dress. This is especially so for Cohiba.
Although the names are the same, all of the publicity for the Cuban-made Cohiba, especially in specialist magazines such as Cigar Aficionado, Smoke and the European Cult-Cigar Journal show the brand with its distinctive blue, white and gold band not only in articles, but in all ratings! That what makes a Cuban Cohiba distinctive. ~ to be concluded tomorrow!
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