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Today's
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March 3, 2004
JG
The Yuppie Silence on Haiti
Emilio Sardi
The
Colombia/US Free Trade Deal: It's About More Than Trade
Alan Farago
Swimming in Sewage
Mike Whitney
"Blood
Will Have Blood": 143 Murdered in Liberated Iraq
Heather Williams
Marines Re-take Haiti: the US-Backed Coup Continues
March 2, 2004
William Blum
If Kerry's
the Answer, What's the Question?
Conn Hallinan
Haiti:
the Dangerous Muddle
JoAnn Wypijewski
The Bravo
H-Bomb Test: One WMD They Couldn't Hide
Mike Whitney
Regime Change in Haiti: the Bush Dominos Keep Falling
Ra Ravishankar
Afghanistan, the Liberation That Isn't: an Interview with Mariam
from RAWA
Dan Bacher
Merle Haggard & the Politics of Salmon: "Clearcutting
is Rape"
Greg Moses
Oscar White
Brandy Baker
Mel Gibson's Minstrelsy Show
Little Tucker Carlson
What I Did on My Vacation
Robert Fisk
All This
Talk of Civil War, Now This
Merle Haggard
Kern River
Website of the Day
Rebel Edit
March 1, 2004
Alexander Cockburn
Morris
Thanks War Criminal in Front of Billions
Richard Oxman
Oscar's
Obit: Thanking Bob McNamara
Elaine Cassel
Writing and Reading as "Terrorism"
Mickey Z
Thomas Friedman's Education
Mike Whitney
George Will and Anti-Semitism: a Cul-de-Sac of Prejudice
Heather Williams
Haiti
as Target Practice: How the US Press Missed the Story
Cathy Crosson
Chanson d'amour haïtienne
Website of the Day
God Hates Shrimp
February 28 / 29, 2004
Stephen Green
Serving
Two Flags: Neo-Cons, Israel and the Bush Team
Gary Leupp
Another Senseless Bush Battle: Defining and Protecting Marriage
William A. Cook
Israel:
America's Albatross
Ron Jacobs
Kucinich: Good Fight; Wrong Battlefield
Ben Tripp
A Nosegay of Posies: Queer Weddings at Last!
Leilla Matsui
Dances with Crucifixes
Mike Whitney
Dismantle
the Military Goliath
Yoel Marcus
Down and Out in the Hague
Uri Avnery
The Dancing Bear
Linda S. Heard
Britons and Americans Condemned to a Hobson's Choice
Al Krebs
Unmasking a Secret American Empire: Land, Water & Cotton
Stan Cox
Life (Pat. Pend.): Genetic Commandeering
JG
The Haiti Boomerang: "After The Looting & Pillaging,
Your Hunger Will Remain"
Rick Giombetti
Censorship at the Seattle P-I on Forced Psychiatry
Keith Hoeller
The Bankruptcy of Mental Health Insurance Parity
Dave Zirin
Colorado Football: Buffalo Swill
NADERAMA
Alan Maass
Nader and the Politics of Lesser
Evils
Michael Donnelly
Regime
Rotation: Anybody But Bush...Again?
Niranjan Ramakrishnan
Exeunt Serenaders; Enter Nader
Doug Giebel
So Nader's Running? Get Over It
Bruce Jackson
An Open Letter to Naderites
CounterPunch Wire
Stalinists for Kerry! and Other Roars from the Crowd
Poets' Basement
Davies, Scarr, Kearney & Albert
February 27, 2004
Thomas C. Mountain
A
White Jesus During Black History Month?
Laura Carlsen
Americans
Abroad: Bush is Persona Non Grata
John B. Anderson
Nader's Campaign Brings Back Memories: Creating an Open Electoral
Process
Jason Leopold
Spying
on Kofi Annan
John Chuckman
Nader,
Risk and Hope
Standard Schaefer
An
Interview with Michael Hudson on Putin's Russia
Ray McGovern
Punished
for Honest Intelligence
Saul Landau
The
Haiti Redux
Website of the Day
Bush: Why I'm Running for Re-election
February 26, 2004
Brandy Baker
Is Nader
on to Something?
Jacques Kinau
AEI
to Colombia: "Can't Give You Anything But Guns, Baby"
Norman Solomon
Bugging Kofi Annan: UN Spying
and the Evasions of US Journalism
Greg Weiher
A Purloined Letter: the Zarqawi Gambit
Walt Brasch
Janet Jackson, Bush & No. 542: There are No Halftime Shows
in War
Shadi Hamid
The Music World Explodes in Anger
Norman Madarasz
As Canadian as Corruption
Chris Floyd
Bullets and Ballots
Virginia Tilly
The
Deeper Meaning of the Wall
Amy Goodman / Jeremy
Scahill
Haiti's
Lawyer Says US is Arming Haiti's Anti-Aristide Paramilitaries
Website of the Day
Clear Channel Sucks
February 25, 2004
Dr. Susan Block
Saddam's
Sex Therapist and the Rape of Free Speech
Bruce Anderson
Treacherous Bastards: The Greens and the Dems and Nader
Ron Jacobs
Our Power is on the Streets and
in Our Hearts
Mike Whitney
Bush
and Gay America: the Politics of Duplicity
Sam Husseini
Jesus in 100 Words
John L. Hess
Kick Off or Flub?
Sam Hamod
Bush's Newest Red Herring
Cockburn / St. Clair
Winning
with Nader
Website of the Day
VotePact
February 24, 2004
Ralph Nader
Why
I'm Running for President
Greg Moses
Rally
the Mob! Bush, Gay Marriage and the Constitution
Douglas O'Hara
The
Merchants of Fear: Smearing Nader
Phillip Cryan
Frozen in Time: The WSJ's Paranoid
Lens on Latin America
David Lindorff
John Kerry's China Connection
Jason Leopold
Cheney's Shame: Halliburton Faces New Charges
Gary Younge
Haiti: Throttled by History
Kromm, Masri & Purohit
Why No Democracy in Iraq?
Steve Perry
Tangled Up in Red and Blue: Beware the Electoral College
February 23, 2004
Neve Gordon
Israel's Apartheid Wall on Trial
at The Hague
Kurt Nimmo
Richard Perle, Executioner: "Heads Should Roll"
Jonathan Franklin
US Soldier Seeks Refugee Status in Canada
Al Krebs
The Liberal "Intelligentsia" v. Nader
Josh Frank
Nader's Nadir? Not a Chance
Bruce Jackson
Nader, Another View: "He's as Evil as Bush"
Gary Leupp
A Misguided
Attack, The Passion, Rabbi Lerner and the Gospels
February 20 / 22, 2004
Cockburn / St. Clair
Kerry:
He's Peaking Already!
Derek Seidman
Chasing
Judith Miller from the Stage: Watch Her Run!
Ghada Karmi
Sharon is not the Problem
Vanessa Jones
This Week in Redfern, a Boy Dies, Chased by Cops
Ben Granby
Anatomy of a Night Raid on Balad, Iraq
John Holt
An Air That Kills: Greed, Apathy, Dead People
Saul Landau
Entry from a White House Diary
Tom Jackson
Why They Couldn't Wait to Invade Iraq
Frederick B. Hudson
Slave Power and the Constitution: Jefferson, Slaves, Haiti and
Hypocrisy
Roger Burbach
Argentina Fights Back
Kate Doyle
Lessons on Justice from Guatemala
Mike Whitney
Operation Enduring Misery: the Afghanistan Debacle
Greg Moses
What Gives Texas A&M the Right to Trample the Civil Rights
Act?
David Krieger
US Elections: an Opportunity to Debate Nuclear Weapons
Sam Bahour
Palestinian Issue Riddles Bush's Budget
David Grenier
You Could Get 10 Years in Prison Just for Reading This
Charles Sullivan
Corporatism vs. Single Party Politics
Poet's Basement
Hilda White, Larry Kearney & Stew Albert
Website of the Weekend
The Rumsfeld Fighting Technique
February 19, 2004
Cecilie Surasky
Anti-Semitism
at the World Social Forum? That's Not What I Saw
Ray McGovern
Iraq
Hawks and Deceptive Intelligence: Did They Really Think They'd
Get Away With It?
Tariq Ali
How Far
Will Bush Go in Iraq?
Ralph Nader
Whither
the Nation?
Wayne Madsen
Would Kerry Purge the Neo-Cons?
Norman Solomon
The Collapse of Dean's Cyber-Bubble
Christopher Brauchli
Cheney, Halliburton and the NYT
Mike Whitney
Bush's Iraq Strategy: "I Hope They Kill Each Other"
Lewis Carroll
Bush the Mighty Helmsman from Yale
Website of the Day
Sex Toy Horoscope
February 18, 2004
William Wilgus
Bush:
AWOL and Dereliction of Duty
William Blum
Mush-Minded
Liberals
Dave Lindorff
Bush's China Syndrome
Greg Weiher
Why
is Kerry Getting a Pass?
Mike Griffin
Killing the Messenger: the AFL-CIO's Attack on Harry Kelber
Mark Hand
Kerry Tells Peace Movement to "Move On"
February 17, 2004
Mike Ferner
The
Countryside Murders in Iraq
Mokhiber / Weissman
Corporation
as Psychopath
Marjorie Cohn
DrakeGate:
a Victory for Free Speech
Kurt Nimmo
Bush's
Endgame: a Review of Chalmers Johnson's "Sorrows of Empire"
Greg Bates
Nader Ambush: a New Low for The
Nation
Ximena Ortiz
A Bush
Doctrine, of Sorts
Gary Leupp
Whatever Happened to Gen. Khazraji?
Sen. John Kerry
"The Cause of Israel is the Cause of America"
Steve Perry
Kerry
1, Drudge 0
February 16, 2004
James Johnston
Huddling
with the Cheeseheads in a NASCAR World
Sara Eltantawi
To
Wear the Hijab or Not
Bruce Anderson
Kevin
Cooper and the Midnight Needle
Elaine Cassel
Feds
on Campus: the Drake Subpoenas
Rahul Mahajan
Bush,
Is the Tide Finally Turning?
Kevin Cooper
The Ritual of Death
Stan Cox
Goodbye, Howard Dean
Larry David
My War
Steve Perry
Bush and the Guard: the Cover-Up's the Thing
Website of the Day
Prison Patriots: Help This Vital Film Get Made
Hot Stories
Alexander Cockburn
Behold,
the Head of a Neo-Con!
Subcomandante Marcos
The
Death Train of the WTO
Norman Finkelstein
Hitchens
as Model Apostate
Steve Niva
Israel's
Assassination Policy: the Trigger for Suicide Bombings?
Dardagan,
Slobodo and Williams
CounterPunch Exclusive:
20,000 Wounded Iraqi Civilians
Steve
J.B.
Prison Bitch
Sheldon
Rampton and John Stauber
True Lies: the Use of Propaganda
in the Iraq War
Wendell
Berry
Small Destructions Add Up
CounterPunch
Wire
WMD: Who Said What When
Cindy
Corrie
A Mother's Day Talk: the Daughter
I Can't Hear From
Gore Vidal
The
Erosion of the American Dream
Francis Boyle
Impeach
Bush: A Draft Resolution
Click Here
for More Stories.
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March
3, 2004
The Purloined Label
A
Struggle Over the Havana Club Trademark
By ROBERT SANDELS
Both the Clinton and Bush II administrations professed
a commitment to free trade. That may be a whimsical metaphor
for the free roaming of capital, but sticking with the conceit
for a moment, the dispute over who owns the Havana Club rum trademark
is an example of how special-interest politics trumps the very
international agreements necessary for the orderly exchange of
goods under free-trade principles.
In January, the Trademark Trial and Appeal
Board (TTAB) of the U.S. Patent and Trademark Office ruled in
favor of a Cuban-French firm that sells Havana Club rum in some
80 countries. The ruling blocks Bacardi-Martini's attempts to
sell its own non-Cuban version of Havana Club in the U.S.
Havana Club International (HCI) is a
joint venture between Cuban state-owned Havana Rum and Liquors
and the French spirits firm Pernod Ricard. The original producer
of Havana Club rum, Jose Arechabala S.A., left Cuba after Fidel
Castro came to power. In the succeeding decades, the Arechabala
family never revived the business and abandoned the trademark
in the U.S. and in other countries where it had been registered.
The Bacardi company, expropriated in
Cuba in 1960, moved its distillery operations elsewhere in the
Caribbean under the name Bacardi Ltd., and its headquarters to
the Bermuda tax haven. In North America, it operates through
Miami-based Bacardi-Martini.
Bacardi paid the Arechabala family a
reported $1.5 million for rights to the trademark, which the
family arguably no longer owned. No matter, Bacardi began selling
"Havana Club rum" produced in the Bahamas by an affiliate,
Galleon, S.A., in the mid-1990s. Marketing the rum was suspended
when HCI took legal steps to enjoin Bacardi from infringing on
its trademark.
In effect, the TTAB held that Bacardi's
attempt to void HCI's registration of the trademark had no legal
merit because the Cuban state-owned company Cubaexport had duly
registered the trademark in Cuba and transferred registration
to the U.S. in 1976, three years after the Arechabala family
allowed it to lapse. In 1993, Cubaexport and Pernod Ricard formed
HCI, which renewed the trademark in its own name in 1996.
Bacardi lawyers argued that the renewal
had been fraudulently obtained. In 1999, the U.S. District Court
for the Southern District of New York rejected HCI's claim, and
rights to the trademark reverted to Cubaexport, leaving the matter
in legal limbo. The ruling was later upheld by an appeals court
and the Supreme Court.
Key to Judge Shira Scheindlin's decision
(Havana Club Holding, S.A. v. Galleon, S.A., S.D.N.Y., 1999)
was a 1998 law known as Section 211, which was intended to favor
Bacardi. Section 211 is a brief provision inserted by the two
Florida senators into the massive 1998 Omnibus Appropriations
bill, which was passed without debate. It is doubtful that many
members of Congress read Section 211 or even knew of its existence.
Section 211 prohibits U.S. courts from
recognizing any "mark, trade name, or commercial name that
is the same or substantially similar to a mark, trade name, or
commercial name that was used in connection with a business or
assets that were confiscated unless the original owner of such
a mark, trade name, or commercial name, or the bona fide successor-in-interest
has expressly consented."
It depends on what
"confiscation" means
Section 211 hinges on the fact of Cuba's
confiscation of the Havana Club trademark. But the various rulings
were mostly based on narrow aspects of the law and do not seriously
inquire whether the trademark was ever confiscated or under what
circumstances.
In a detailed analysis of the legal debate,
Stephen J. Kimmerling (Association for the Study of the Cuban
Economy, ASCE, proceedings, 08/12?14/1999) suggested that a case
could be made that the Arechabala family never abandoned its
claims to the trademark. He writes, "because the Cuban government
forcibly expropriated the Arechabala's business (including the
trademark), the family did not voluntarily cease using the Havana
Club mark." Furthermore, "one could argue that...subsequent
lack of capital to resume business would excuse the mark's nonuse."
On the other hand, HCI maintained that
Havana Club was not confiscated but rather that the Arechabala
family simply slid out of the picture. In his book, Bacardi:
The Hidden War, Hernando Calvo Ospina writes that four years
before the Castro government came to power, the Arechabala family
began allowing its trademark to lapse as the business faced financial
setbacks. The argument is that the government intervened to assume
control of a bankrupt company.
There is also a dispute over whether
a trademark is the same as a physical property than can be confiscated.
And even it was confiscated in Cuba, HCI has claimed that the
confiscation could have had no effect in the U.S., where the
Arechabala family could have paid $20 to renew the trademark
and done business in the U.S. market unchallenged.
Judge Scheindlin relied heavily on other
anti-Castro legislation. She rejected HCI's claim of unfair competition
from a rum bearing the universally recognized Cuban label but
containing nothing produced in Cuba. Because of the trade embargo,
Scheindlin reasoned, HCI's likelihood of selling the real thing
in the U.S. was "too remote." Thus, legislated "remoteness"
meant that HCI could not show it would suffer harm from Bacardi's
use of the trademark.
This circular logic is a reminder that
law is self referencing; referring to itself to justify its own
outcomes. The courts did not examine the special-interest politics
underlying anti-Castro legislation and its obvious potential
for creating chaos in international commercial relations.
Bacardi lobbies Gov.
Bush; Bush lobbies Patent Office
Then there is the matter of Florida Gov.
Jeb Bush's use of his elective office to interfere in federal
administration rulings.
Patent Office regulations prohibit ex-parte
efforts to sway a decision on behalf of one side in a dispute.
Nevertheless, The Washington Post reported (10/18/02) that the
Florida Democratic Party had secured documents showing that the
governor intervened on behalf of Bacardi with the TTAB. This
took place as the company donated large sums to Republican Party
coffers.
While the TTAB was considering the trademark
dispute, Bacardi president Jorge Rodriguez Marquez wrote Gov.
Bush, "Someone needs to tell PTO [Patent Office] to stop
interfering." Bush then wrote to Patent Office Director
James Rogan, "I am writing on behalf of Florida-based Bacardi-Martini,
U.S.A, Inc. to ask that the Patent and Trademark Office take
quick, decisive action on a pending application....The outdated
registration [by Cubaexport]...should be canceled immediately."
Rogan is a political appointee of President
George W. Bush.
E-mails from Gov. Bush's office showed
that he and his staff had correspondence and secret meetings
with other Patent Office officials. Rodriguez Marquez has acknowledged
that he met with State Department officials, Vice President Dick
Cheney's staff, and White House political advisor Karl Rove concerning
the case.
The Post also reported (12/04/02) that
Rodriguez-Marquez belatedly filed a required federal report showing
that he had spent $500 million in lobbying since 1998. In addition,
Bacardi spent U.S. $2.2 million more to hire lobbyists.
The governor's spokeswoman, Elizabeth
Hirst, denied Bacardi's political contributions had anything
to do with the case, and explained that Bush was working in his
official capacity to represent a constituent, "a company
that is based in Florida, which employs a significant number
of people and generates revenue to our economy."
She did not explain the governor's theory
that Bacardi should get the trademark because Cubaexport "belongs
to Fidel Castro." This is a novel interpretation of trademark
law and contrasts starkly with the legal arguments in the case.
Here is an example of such an argument put before a World Trade
Organization (WTO) dispute resolution panel in 2001:
"As regards Article 15.1 of the
TRIPS [Trade-Related Intellectual Property Rights] Agreement,
the United States contends that Section 211(a) (1) is not inconsistent
with its provisions. Article 15.1 defines eligible subject matter
of trademarks and limits the ability of Members to claim that
a trademark is not capable of constituting a trademark, and is
therefore not eligible for registration, because of the form
of the trademark. It does not contain an affirmative obligation
to register all eligible trademarks" (WTO, WT/DS176/R, 08/06/01).
There are hundreds of pages like this
through years of judicial hearings. But Gov. Bush cuts through
the legal thicket, offering as his reason to cancel Cubaexport's
longstanding ownership of the trademark the purist of political
justifications: the registration "belongs to a company owned
by Fidel Castro."
The 2001 WTO panel decided largely in
favor of Bacardi by accepting the U.S. view that Section 211
does not violate TRIPS because TRIPS does not offer protection
to holders of trademarks.
The WTO Appellate Body reversed the dispute
panel's in 2002 finding that, "WTO Members do have an obligation
under the TRIPS Agreement to provide protection to trade names,"
The Appellate Body instructed the U.S. to change Section 211
or face fines and trade sanctions.
Bill would invalidate
Section 211
Congress has yet to act on the WTO instructions
even though U.S. businesses pointed out that the law was an open
invitation for Cuba or any other country to ignore foreign registered
U.S. trademarks. Castro has announced that Cuba might sell rum
under the Bacardi label and sell Cuban-made AIDS medicines patented
by U.S. companies.
A bipartisan bill (U.S.-Cuba Trademark
Protection Act of 2003) to get rid of Section 211, now before
Congress, has the support of 670 businesses organized under the
coalition U.S.A.-Engage.
The bill would force the administration
to institute talks with Cuba to ensure that both countries adhere
to trademark protection agreements. The bill would also expressly
direct the courts to enforce trademark rights and disregard Section
211.
Because of the trade embargo, repeal
of Section 211 would not mean Havana Club International could
sell its rum in the U.S. However, it would prevent anyone else
from selling under that label.
Robert Sandels
writes about Cuba and Latin America for the Latin
America Database at the University of New Mexico and other
publications.. He received a B.A. in Spanish literature in 1958
from the University of the Americas in Mexico City. He also received
an M.A. in American history in 1962 and a Ph.D in Latin American
history in 1967 from the University of Oregon. He has taught
at Chico State University in California, at San Francisco State
University, and at Quinnipiac College in Connecticut.
Weekend
Edition Features for February 28 / 29, 2004
Stephen Green
Serving
Two Flags: Neo-Cons, Israel and the Bush Team
Gary Leupp
Another Senseless Bush Battle: Defining and Protecting Marriage
William A. Cook
Israel:
America's Albatross
Ron Jacobs
Kucinich: Good Fight; Wrong Battlefield
Ben Tripp
A Nosegay of Posies: Queer Weddings at Last!
Leilla Matsui
Dances with Crucifixes
Mike Whitney
Dismantle
the Military Goliath
Yoel Marcus
Down and Out in the Hague
Uri Avnery
The Dancing Bear
Linda S. Heard
Britons and Americans Condemned to a Hobson's Choice
Al Krebs
Unmasking a Secret American Empire: Land, Water & Cotton
Stan Cox
Life (Pat. Pend.): Genetic Commandeering
JG
The Haiti Boomerang: "After The Looting & Pillaging,
Your Hunger Will Remain"
Rick Giombetti
Censorship at the Seattle P-I on Forced Psychiatry
Keith Hoeller
The Bankruptcy of Mental Health Insurance Parity
Dave Zirin
Colorado Football: Buffalo Swill
NADERAMA
Alan Maass
Nader and the Politics of Lesser
Evils
Michael Donnelly
Regime
Rotation: Anybody But Bush...Again?
Niranjan Ramakrishnan
Exeunt Serenaders; Enter Nader
Doug Giebel
So Nader's Running? Get Over It
Bruce Jackson
An Open Letter to Naderites
CounterPunch Wire
Stalinists for Kerry! and Other Roars from the Crowd
Poets' Basement
Davies, Scarr, Kearney & Albert
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