Cigar Law

Obama Invites US Rep. Castor of Tampa to SCHIP Signing Into Law Ceremony

noreply@blogger.com (Frank Herrera) — Wed, 04 Feb 2009 21:26:00 +0000

President Obama signed the State Children's Health Insurance Program ("SCHIP") into law today. He invited Democratic U.S. Rep. Kathy Castor of Tampa to attend. Hey Castor, nice way to tell your district (Tampa and Ybor City and all of cigar manufacturers therein) that you love them.

see http://www.mgwashington.com/index.php/herd_washington/index/castor/2497/

Long Beach City Council Says Smoke 'em If You Got 'em

noreply@blogger.com (Frank Herrera) — Wed, 04 Feb 2009 16:04:00 +0000

KNX 1070 Newsradio reports that the Long Beach City Council amended a local ordinance to allow cigars to be smoked in designated cigar lounges.
http://www.knx1070.com/Lighting-Up-in-Long-Beach/3786463

Bro, I can't find a blunt anywhere in this damn town

noreply@blogger.com (Frank Herrera) — Wed, 04 Feb 2009 13:53:00 +0000

Check out this article in today's The Washington Times about a proposed amendment to the D.C. Drug Paraphernalia Act of 1982, which prohibits the sale of objects that are modified to make or use illegal drugs.

http://www.washingtontimes.com/news/2009/feb/04/not-just-blunts/

Thanks ...

noreply@blogger.com (Frank Herrera) — Mon, 02 Feb 2009 19:34:00 +0000

Thanks to Attorney Sam Hasler for his mention of this blog on his own blog located at www.haslerlaw.blogspot.com.

Thanks ...

noreply@blogger.com (Frank Herrera) — Sat, 31 Jan 2009 23:55:00 +0000

Thanks to Attorney Ron Coleman for the mention of this blog on his site www.likelihoodofconfusion.com.

Thanks also goes out to the gentleman that gave us a shout out on www.cigarfamily.com, namely, on the Cigar Lounge Online Forum http://lounge.cigarfamily.com/

We've noticed a lot of traffic from these sites this week and are pleased to see that others enjoy the content.

-Editor

Cigar Aficionado's Open Letter to Obama

noreply@blogger.com (Frank Herrera) — Mon, 26 Jan 2009 23:00:00 +0000

Entertaining ...
http://www.cigaraficionado.com/Cigar/CA_Home/In_this_Isssue/0,2510,,00.html

USA Today article on Taxing of Small Cigars

noreply@blogger.com (Frank Herrera) — Mon, 26 Jan 2009 22:47:00 +0000

As you read this article, keep in mind the tune of "George Harrison's 'The Tax Man.'" I prefer Junior Parker's soulful version as sung on his album "Love Ain't Nothin' But A Business Goin' On."

http://www.usatoday.com/news/health/2008-02-19-small-cigars_N.htm

Empresa Cubana del Tabaco a/k/a Cubataba's Application for Certification Mark for "HABANOS"

noreply@blogger.com (Frank Herrera) — Sat, 24 Jan 2009 23:59:00 +0000

Below is an "Office Action" letter issued in response to this Cuban entity's application for a certification mark for "HABANOS." Be prepared for Empresa's response soon ... arguments will undoubtedly regurgitate how famous and great Havana, Cuba is for cigars ... forget the fact they have not been legally available in the United States for four decades. Again, Obama fever ... Cuba is paving the way for sales in the United States ...

UNITED STATES PATENT AND TRADEMARK OFFICE

SERIAL NO: 77/157193

MARK: HABANOS

*77157193*
CORRESPONDENT ADDRESS:
DAVID B. GOLDSTEIN
RABINOWITZ, BOUDIN, STANDARD, KRINSKY &
111 BROADWAY FL 11
NEW YORK, NY 10006-1901

RESPOND TO THIS ACTION:
http://www.uspto.gov/teas/eTEASpageD.htm

GENERAL TRADEMARK INFORMATION:
http://www.uspto.gov/main/trademarks.htm

APPLICANT: Empresa Cubana del Tabaco a/k/a Cubataba ETC.

CORRESPONDENT’S REFERENCE/DOCKET NO:
N/A
CORRESPONDENT E-MAIL ADDRESS:
dgoldstein@rbskl.com

OFFICE ACTION

TO AVOID ABANDONMENT, THE OFFICE MUST RECEIVE A PROPER RESPONSE TO THIS OFFICE ACTION WITHIN 6 MONTHS OF THE ISSUE/MAILING DATE.

ISSUE/MAILING DATE: 8/21/2008

This Office action is in response to applicant’s communication filed on August 10, 2008.

Applicant seeks to register the designation “Habanos” as a certification mark used to indicate the geographical origin of cigars. The word “habano” (the plural being “habanos”) is translated as “Havanan, Havana, of Havana.” See: Larousse, Gran Diccionario English-Spanish Spanish-English Dictionary, XVII & 362 (1944) and The American Heritage Spanish Dictionary, 277 (2nd ed, 2001)(copies enclosed). “Habanos” also means “something from Havana”. See: Reference.com (on-line encyclopedia)(copy enclosed). Further, “Habano” is defined as a Havana cigar or Cuban cigar. See: the above definitions as well as the on-line guide by CigarAdvisor (copy enclosed).

Certification Statement

A certification mark for a geographical location is used to certify that certain goods originate in the particular geographical region identified by the mark. Community of Roquefort v. William Faehndrich, Inc., 133 USPQ 633 (2nd Cir, 1962), and TMEP § 1306.02. In the present situation the designation “Habanos” indicates that cigars branded with applicant’s designation have their origin in the Province or City of Havana, Cuba, for Havana refers to both a Cuban province and city located therein. See: The Columbia Gazetteer of the World Online (2005)(copy enclosed). The certification statement, however, is defective because it indicates that the certification mark indicates that cigars identified with applicant’s designation have their geographical origin in Cuba and are made from Cuban grown tobacco. Correspondingly, the certification statement must be amended to indicate the geographical location from which the goods originate, and that is Havana.

Geographical Misdescription

Applicant bases this service mark application, in part, upon a Cuban trademark registration that indicates the designation “Habanos” identifies cigars grown in the country of Cuba using tobacco produced in Cuba. However, the mark for which registration is sought is “Habanos”, a geographical region in Cuba that does not identify the entire country. Because the mark sought to be registered indicates that cigars originate in a particular geographical region (that is, the Province of Havana), and the Cuban trademark registration upon which the application is based, in part, indicates that the designation “Habanos” identifies cigars grown in all parts of Cuba, the mark geographically misdescribes the goods. Correspondingly, the following is instituted:

Registration is refused because the applied-for mark consists of or includes geographically deceptive and primarily geographically deceptively misdescriptive matter in relation to the identified goods and/or services. Trademark Act Sections 2(a) and 2(e)(3), 15 U.S.C. §1052(a), (e)(3); see In re Les Halles De Paris J.V., 334 F.3d 1371, 67 USPQ2d 1539 (Fed. Cir. 2003); In re Cal. Innovations Inc., 329 F.3d 1334, 66 USPQ2d 1853 (Fed. Cir. 2003), In re Budge Mfg. Co., 857 F.2d 773, 8 USPQ2d 1259 (Fed. Cir. 1988); TMEP §§1210, 1210.01(b)-(c).

A mark is geographically deceptive and primarily geographically deceptively misdescriptive if the following is shown:

(1) The primary significance of the mark is a generally known geographic place or location;

(2) The goods for which applicant seeks registration do not originate in the geographic place identified in the mark;

(3) Purchasers would be likely to make a goods-place association; that is, purchasers would be likely to believe that the goods originate in the geographic place identified in the mark; and

(4) The misrepresentation regarding the geographic origin of the goods is material to the purchaser’s decision to buy the goods or use the services in question.

In re Les Halles De Paris J.V., 334 F.3d 1371, 1373, 67 USPQ2d 1539, 1541 (Fed. Cir. 2003); In re Cal. Innovations Inc., 329 F.3d 1334, 1341, 66 USPQ2d 1853, 1859 (Fed. Cir. 2003); TMEP §1210.01(b)-(c).

Descriptiveness

Applicant seeks to register the designation “Habanos” for a certification mark for cigars. As was noted above, the word “Habanos” is variously defined. It is defined as “Havanan” or “of Havana” or “something from Havana”. “Habanos” is also defined as a Havana cigar or a cigar, in general. Further, applicant’s service mark registration, upon which this application is based, indicates that the cigars certified are produced over the entire country of Cuba using Cuban cigar tobacco. This evidence shows that the cigars covered by the service mark application are not exclusively produced in the Province of Havana and the designation “Habanos” is used as the generic name for cigars. Correspondingly, “Habanos” primarily signifies a type of cigar made either in Cuba or outside Cuba, without regard to the regional origin identified by the name, rather than a mark of certification. Since “Habanos” is a descriptive name of a particular type of cigar and does not identify a geographical location from which particular cigars originate, the refusal to register because “Habanos” does not act as a certification mark is maintained. Trademark Act § 2(e)(1). See: In re Cooperativa Produttori Latte E Fontina Valle D’Acosta, 230 USPQ 131 (TTAB, 1986), and Tea Board of India v. Republic of Tea Inc., 80 USPQ2d 1881 (TTAB, 2006).

Cuban Registration

Applicant submitted August 10, 2008, a certification signed by the General Director of the Cuban Office of Industrial Property indicating that as of January 27, 2003, the owner of the Cuban service mark registration upon which this application is based had relocated and that the registration was in full effect at that time. It is noted that the term of a Cuban trademark registration, which is ten years, commences on the filing date of the application, once the underlying mark is registered, and may be renewed for successive 10 year periods. See: Trademarks Throughout The World, § 39.20 (2008)(copy enclosed). Applicant’s service mark in Cuba was registered December 4, 1967. Correspondingly, with the proper renewals, the registration would have expired December 4, 2007. Although the General Director’s statement that the registration was in effect on January 27, 2003, was correct, the statement has little bearing upon the renewal of the registration.

It appears that the foreign registration on which this application is based, in part, expired on December 4, 2007. The foreign registration must be in force at the time the United States issues a registration based on that foreign registration. In re Societe D’Exploitation de la Marque Le Fouquet’s, 67 USPQ2d 1784 (TTAB 2003).

Therefore, applicant must submit a certificate of renewal or other certification from the intellectual property office of the foreign country, or a copy of the foreign registration that shows that the foreign registration has been renewed and will be in force at the time the registration issues in the United States. 37 C.F.R. §2.34(a)(3)(iii); TMEP §1004.01(a).

/David C. Reihner/, Examining Attorney
Law Office 111, 571-272-9392
571-273-9111 fax.

Xikar, Inc. Files Motion for Summary Judgment in Corporacion Habanos v. Xikar, Inc.

noreply@blogger.com (Frank Herrera) — Sat, 24 Jan 2009 23:41:00 +0000

OPPOSITION NO.91186534
Pending before the United States Patent and Trademark Office's Trademark Trial and Appeal Board.

Xikar recently filed its Motion for Summary Judgment in this matter. Full brief to be posted here shortly. In short, Xikar, like so many before them argues, among other things, that Havana and Habano are generic for cigars. I tend to agree whole heartedly. In fact, Corporacion Habanos and its related entities have been extremely aggressive lately in attempting to enforce "HABANOS" and "HAVANA" as a geographic indication of origin. Looks like Obama fever has spread and they are trying to pave the way for a United States market for Cuban cigars and related products.

Not Breaking News, But ... N.Y. Federal Judge Finds Cigar Maker Entitled to Relief Over 'Cohiba' Sales

noreply@blogger.com (Frank Herrera) — Sat, 24 Jan 2009 22:23:00 +0000

http://www.law.com/jsp/article.jsp?id=1202426406383

Good Luck enjoining General Cigar's sales of COHIBA in the U.S. Krinksy ...

SCHIP - Lowdown

noreply@blogger.com (Frank Herrera) — Fri, 23 Jan 2009 20:11:00 +0000

http://www.cigarweekly.com/magazine/cigarticles/01-16-2009/schip-in-congress

SCHIP - Lowdown

noreply@blogger.com (Frank Herrera) — Fri, 23 Jan 2009 20:11:00 +0000

2008 STATE CIGAR TAX RATES

noreply@blogger.com (Frank Herrera) — Tue, 13 Jan 2009 20:47:00 +0000

2008 STATE CIGAR TAX RATES
(per the Federation of Tax Administrators Web site)

Alabama
4.0¢ per cigar

Alaska
75% of the wholesale price

Arizona
13.0-44.1¢ per cigar

Arkansas
32% of the manufacturer's price

California
45.13% of the wholesale price

Colorado
40% of the manufacturer's price

Connecticut
20% of the wholesale price

Delaware
15% of the wholesale price

Florida
No Tax

Georgia
23% of the wholesale price

Hawaii
40% of the wholesale price

Idaho
40% of the wholesale price

Illinois
18% of the wholesale price

Indiana
24% of the wholesale price

Iowa
50% of the wholesale price (50¢ per cigar cap)

Kansas
10% of the wholesale price

Kentucky
7.5% of the wholesale price

Louisiana
8-20% of the manufacturer's price

Maine
20% of the wholesale price

Maryland
15% of the wholesale price

Massachusetts
30% of the wholesale price

Michigan
32% of the wholesale price

Minnesota
70% of the wholesale price

Mississippi
15% of the wholesale price

Missouri
10% of the wholesale price

Montana
50% of the wholesale price

Nebraska
20% of the wholesale price

Nevada
30% of the wholesale price

New Hampshire
19% of the wholesale price

New Jersey
30% of the wholesale price

New Mexico
25% of the product value
Colorado
40% of the manufacturer's price

New York
37% of the wholesale price

North Carolina
3% of the wholesale price
Delaware
15% of the wholesale price

North Dakota
28% of the wholesale price

Ohio
17% of the wholesale price

Oklahoma
12-36¢ per cigar

Oregon
65% of the wholesale price (cap of 50¢ per cigar)

Pennsylvania
No Tax

Rhode Island
40% of the wholesale price (cap of 50¢ per cigar)

South Carolina
5% of the manufacturer's price

South Dakota
35% of the wholesale price

Tennessee
6.6% of the wholesale price

Kentucky
7.5% of the wholesale price

Texas
1.0¢ per cigar

Utah
35% of the manufacturer's price

Vermont
41% of the manufacturer's price

Virginia
10% of the wholesale price

Washington
75% of the wholesale price (cap of 50¢ per cigar)

Washington, D.C.
12% of gross receipts

West Virginia
7% of the wholesale price

Wisconsin
50% of the wholesale price (cap of 50¢ per cigar)

Wyoming
20% of the wholesale price