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Friday 23 April 2010

Patricia Covarrubia

Bacardi Rum Havana Club – clearly not made in the Havana, uh?

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A federal judge dismissed a lawsuit by Pernod Ricard against Bacardi. Pernord Richard, the premium spirits and wine company in the U.S., requested for an injunction stopping Bacardi U.S.A. from using "Havana Club" as the name for a rum that is made in Puerto Rico, rather than in Havana, Cuba. The U.S. District Court in Delaware dismissed the lawsuit.

Who has the right to the Havana Club brand?
The Arrechabala family, a Cuban family, created the brand of rum in Cuba in 1935.
On one hand, Pernod argument was that by using the name Havana, which is a well-known city for rum, for non-Cuban rum would mislead consumers. On the contrary, Bacardi believes that they are entitled to the name because it uses the Arechabala formula to make its rum.

The judge ruled that Havana Club rum Barcadí has a "Cuban heritage,'' derived from the family recipe Arrechabala. The judge also ruled that, Bacardi labels indicate ''that the rum is distilled in Puerto Rico'' and so the company is not misleading consumers.

In a statement John Esposito, president of Bacardi USA based in Coral Gables, explains the importance of this decision. He said that it “protects our ability to properly introduce Cuban heritage and geographical origin of our rums”.

Some points
• Geographical Indication(GI): this is the thorny question. The reason being that I am trying to prepare a paper for the forthcoming seminar in Alicante and guess what? It is a mess. I did have a simple definition for it and I did understand quite well until...I start reading all the Latin America literature regarding this issue. It is so confusing how they (or us) interchange words and thus the result is, as my mother use to said, a ‘letter soup’. Or, is a GI the same as a Designation of Origin (DO), or a DO the same as an appellation of origin or GI the same as Appellation of Origin? and I also found geographical appellation! When I finished reading the material collected I could not remember what a GI was!

I then read the TRIPS where clearly states what is Geographical Indications – indications that identify a good as originating in a particular territory, region. This is indeed a very broad concept. For example the EU regulation in this matter identify between Designation of Origin, Geographical Indication and traditional speciality guaranteed. The first two are the most common. DO protects and cover products which are produced, processed and prepared in the said geographical area and GI which is the most common one, protects and cover products which at least one of the stages have taken place in the said geographical area.

Now, under which principal can Bacardi claim any right? There is the situation as in here where a group of manufacturers and associations can share the ‘goodwill’ of a product and thus are entitled to use the ‘mark’. But the question is, could a ‘recipe’ be the link claimed here?

There are many cases in the EU (Champagne, Sherry, Advoocaat, upon others) that said NO. There are also cases of parallel import where even same companies can stop the same product for entering the country (Colgate Palmolive- toothpaste case). The idea is that Geographical Indication indicates more than a simple link; it indicates quality that a particular area has.

• The United States generally opposes to the protection of Geographical Indications considering that they are commonly used as generic terms e.g. parmesan cheese, feta, camembert, champagne. Yet, it protects some of its own products, e.g. Florida orange juice, Idaho Potatoes, Vidalia onions.

I leave you then with some ideas, I am going to make a cake for my kids - I will follow my granny’s recipe and it will be the same!

Patricia Covarrubia

Patricia Covarrubia