2d Circuit Declares Open Season on Cuban Marks

Well, that's not what they actually said in Empresa Cubana del Tabaco v. Culbro Corp., No. 04-2527 (Feb. 24, 2005), but that's the effect. The plaintiff was a Cuban cigar company famous for its COHIBA cigars. But alas, the Cuban trade embargo prohibits their sale in the US. So the defendant, an unrelated US company, decided to market its own COHIBA cigars in the US, admittedly based on the international fame of the unavailable original. AND THE SECOND CIRCUIT LET THEM GET AWAY WITH IT! Why? Because the very same embargo prohibits the Cuban company from acquiring any enforceable trademark rights in the mark in the US. With no rights, the Cuban company's Lanham Act case went up in smoke. Interestingly, the Second Circuit took an even stricter view of the effect of the Cuban embargo than the US Departments of Justice and the Treasury took in their amicus submission. Is there a cert petition in the humidor?