Cuban cigars and Havana Club rum for the holidays?
By PAMELA FALK CBS NEWS December 24, 2014, 11:13 AM Don't light up that Cohiba cigar yet. U.S.-Cuba diplomatic relations are opening and most Americans approve, but it is a long legal and legislative journey before full trade can begin across the Straits of Florida.
Cuban Cigars & Rum
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Will the U.S.-Cuba policy shift mean access to Cuban cigars?
According to Assistant Secretary of State Roberta Jacobson, now part of the negotiations team with Jeffrey DeLaurentis, the new head of the U.S. Interests Section in Havana, the prized luxuries of an impoverished Cuba - rum and cigars - are still off limits to most Americans.
She said that the building housing the U.S. Interests Section would once again be called the U.S. Embassy, saying that "it doesn't require a formal sort of legal treaty or agreement." Migration talks are on the agenda for late January.
But on Cuban cigars and rum and, more important, claims by Americans and Cuban Americans, she was clear: the regulations have to be changed, and they are working on it.
"There are other things that need to be agreed upon that have always been part of the discussion of diplomatic relations with Cuba, such as registered claims against the Cuban Government," she said.
As for the top brands, Cohiba cigars and Havana Club rum, court battles have been fought since Fidel Castro came to power.
Marvin R. Shanken, Editor and publisher of Cigar Aficionado magazine, told CBS News that "Cuban cigars have long been the forbidden fruit" for cigar lovers in the U.S.
"The cigar business was born in Cuba, and cigars made in Havana have a worldwide reputation for excellence," Shanken said. "We yearn for the day when our readers can have the opportunity to legally buy and enjoy cigars from every country."
Important to understand is that, with the opening of diplomatic relations, and the proposed liberalization of travel licenses by President Obama, Americans who are authorized to travel to Cuba (the number will increase dramatically under a general license) will be able to legally purchase and import more cigars and rum for their own consumption, from Cuba.
Even absent diplomatic relations, trademarks have always been exempt from the embargo. Because of the First Amendment, "informational materials" like trademarks are considered to be equivalent to speech, and that means that the Cuban government can assert their trademark claims in U.S. courts, and U.S. trademark owners have been able to register their claims in Cuba.
In the cigar cases, many cigar companies were expropriated and have defended their trademarks. The case of Cohiba is a different kind of case, since it was created several years after the Revolution and marketed outside of Cuba as well, and it is Cuba that is asserting infringement of its trademark.
After a series of court cases, and opinions by the U.S. Patent Office and the World Trade Organization, the case, General Cigar Co. v. Empresa Cubana del Tabaco dba Cubatabaco, is before the U.S. Supreme Court.
In the case of Bacardi, after a series of court cases, U.S. legislation (known as the Bacardi Bill in an appropriations act in 1998) was passed that prohibited the joint venture by Cuba and a French company to register in the U.S.
Amy Federman, spokesperson for Bacardi, told CBS News that Bacardi is proud of its Cuban roots.
"We have the utmost respect and sympathy for the Cuban people with whom we share a common heritage," Federman said. "Regarding the diplomatic actions, we will need to wait and see what the impacts are. We hope for meaningful improvements in the lives of the Cuban people and will follow any changes with great interest. In the meantime, we continue to support the restoration of fundamental human rights in Cuba."
Other claims for property and business are still to be settled. The Helms Burton Act, or The Cuban Liberty and Democratic Solidarity Act of 1996, creates a federal cause of action for U.S. citizens against anyone who traffics in that property, if their property was confiscated without compensation by Cuba. That part of the law covers the plaintiffs who have certified claims under the Foreign Claims Settlement Commission and plaintiffs who became U.S. citizens (including Cuban Americans) whose property was "trafficked."
The Foreign Claims Settlement Commission, a program of the Department of Justice, certified 5,912 claims, totaling $1.9 billion, but that amount may be much higher with interest and added value of the real estate.
"Although I am concerned that there was no reference to property claims, I am hopeful that those matters are being discussed and they will be included in the resolution of the foreign policy impasse," Mauricio Tamargo, a former Claims Commissioner with PobleteTamargo, LLP, who now represents claimants, told CBS News.
The burden now, according to many of those on both sides of the Florida Straits involved in the negotiations, is on President Obama to enter into very crucial - and tough - negotiations with Cuba on what goes into opening the door to better relations.
The ability of U.S. citizens to bring lawsuits for property confiscated by the Cuban government is unlikely to change in the short term. Opening of diplomatic ties does not change the fact that the Obama Administration (like every U.S. President since 1996) has waived the provision of the Helms Burton Act (Title III), which allows both U.S. citizens whose property was confiscated, and later nationalized Cubans, i.e. Cuban Americans, to have a right of action in U.S. courts.
On the day of President Obama's announcement, Shenkin said: "Today marks the biggest change in U.S.-Cuba relations since 1961. This does not mean the end of the embargo, but it's the dawn of a new day that brings the United States and Cuba a big step closer to normal relations. For cigar smokers, there is the promise of something bigger to come."
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