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Bacardi: "Bacardi USA, Inc. today applauds the US Court of Appeals for the Third Circuit for its unanimous decision in favor of Bacardi in connection with its packaging and marketing of Havana Club rum in the US."
Who's right? Pernod, and I'll tell you why.Pernod: "Pernod Ricard USA pledged to continue to fight against a competitor’s use of the 'Havana Club' name in the US for non-Cuban rum following today’s controversial ruling by a three-judge panel of the US Court of Appeals for the Third Circuit."
Monkey Alert: Caution! The following is full of big words and myth busting legal history. Havabanana!
Here we go:
1. Havana Club is an authentic Cuban rum, made in Santa Cruz del Norte, Cuba. The Arechabala family created "Havana Club" rum in 1935 in Cuba and subsequently sold their rum in Spain and other countries. In 1959, the Arechabala’s Havana Club brand and other assets were nationalized by the Cuban government.
2. The Arechabala family then moved to Spain, left the rum business and later emigrated to the United States. Now read this, and read this twice: The family allowed their US Trademark to expire in 1973. I'll say it again:
In 1973 the Arechabala family allowed the Havna Club trademark to expire.
BTW, renewal is a very simple, very inexpensive process. The family was fully aware of the trademark and simply chose to let it go, as they had been out of the rum business for nearly fifteen years.
3. Some years later Pernod Richards of France, in a 50/50 deal with Cuba acquired the trademark. This process was completely legal at that time. Bacardi went batshit, fearful that if and when the embargo ended, Cuba might decide to enter the US market and pose legitimate and serious competition.
4. Barcardi then went to bed with Tom Delay, who for a very cheap $20,000 took steps that led to the introduction of what came to be known as the "Bacardi Bill", which simply stated that any company that had been, in Bacardi's terms "...confiscated without compensation", could not renew a US trademark. This provision, aka Section 211, was slipped into a much larger bill and passed in 1998.
Of course this legislation was nothing more or less than a sellout aimed at allowing Bacardi to renew the Cuban acquired trademark when it expired. The second thing Bacardi did was to "buy" in 1977 what were non-existant "rights" to the expired trademark from the Arachabala family, who were obviously pleased to be paid for nothing.
5. Then when the Cuban US trademark expired and renewal denied under section 211 (the "Bacardi Bill), Bacardi immediately renewed it and produced what they called "Havana Club", which they promoted as being produced under the Arechabala family formula, as the bottle proclaims "Developed in Cuba circa 1930".
Those who have tasted both find the Bacardi ripoff lacking. Bacardi's version was released in Florida, where it sells poorly.
6. Over the years many lawsuits have been filed worldwide with the result that Pernod Richards has won worldwide - except in the United States. Most impressively, the WTO (World Trade Organization) published a decision ordering the United States to eliminate the 211 provision, which the WTO finds offensive and in contradiction of worldwide patent and trademark protection.
7. The latest US decision is hardly a victory for Bacardi, for while it allows them to use the name "Havana Club", it does so only as the bottle states "Made in Puerto Rico", and found that as such, the rum could not be confused with being made it Cuba. The decision did NOT address who actually owns the trademark. Pernod Richard's survey - that showed that about a fifth of the respondents still believed that Bacardi's "Havana Club" was made in Cuba - was not allowed.
The decision was 2-to-1, with a strong dissent that noted that confusion was entirely possible. Most importantly the decision did NOT give Bacardi the trademark rights to "Havana Club".
Bottom line:
1. Cuba (and Pernod Richards) obtained the abandoned trademark legally in the United States, recognized internationally.
2. The 211 provision (aka the "Bacardi Bill") was literally slipped in to a large bill by Connie Mack of Florida (where else), as lobbied by the infamous Tom Delay, for a reported fee of $20,000.
6. Following this was a series of lawsuits, all won by Pernod Richards and Cuba worldwide, except in the United States, where Bacardi's position continues to deteriorate.
