Habanos Cuban cigar maker sues Missouri company for use of w


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From Havana Journal

http://havanajournal.com/culture/entry/hab...of-word-havana/

Habanos Cuban cigar maker sues Missouri company for use of word “Havana"

The Havana Journal has obtained a copy of the Notice of Opposition filed with the US Patent and Trademark Office whereby Habanos SA, a Cuba based corporation, has filed a trademark infringement lawsuit against Kansas City Missouri based Xikar Inc for using the word “Havana” and the term “Havana Collection” to describe Xikar cigar lighters and that such use is a violation of Habanos SA trademark.

As you read through the fifty three points of interest listed below, you will find odd legal claims such as #15 where the document claims that use of the word Havana should be restricted to products made in Havana and #27 claiming that dictionaries define the word Havana to mean a cigar made in Cuba. There is also #36 stating that the cigar lighters named Havana Collection are “deliberately and falsely associating those goods with Havana”.

So, Habanos SA is claiming that these cigar lighters in the “Havana Collection” are misleading to the public and harmful to their brand. It would appear that if Habanos SA wins this case that they then will have set a precedent and will be able to lay claims to ANY product in the world that uses the word Havana. Does this mean the Habanos SA will challenge the Havana Journal since it is not published in Havana Cuba?

For all you lawyers out there, please post your opinions here or send them in via email at the bottom of this page and I will post them for you if you want to remain anonymous.

Here is the document scanned into text so some information may be missing or in error. Posted for reference only. Please link to this page if you use this material at other websites.

Trademark Trial and Appeal Board Electronic Filing System http://estta.usnto.gov

ESTTA Tracking number: ESTTA238117

Filing date: 09/22/2008

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

Notice of Opposition

Notice is hereby given that the following parties oppose registration of the indicated application.

Opposers Information

Name Corporacion Habanos, S.A.

Granted to Date of previous extension 09/24/2008

Address Avenida 3ra #2006e/20 y 22, Miramar Havana, CUBA

Name Empresa Cubana del Tabaco, dba Cubatabaco

Granted to Date of previous extension 09/24/2008

Address O’Reilly No. 104 Havana, CUBA

David B. Goldstein

Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C. 111 BroadwaySuite 1102

New York, NY 10006-1901 UNITED STATES

[email protected] Phone:212-254-1111

Applicant Information

Application No 77273188

Publication date 05/27/2008

Opposition Filing Date 09/22/2008

Opposition Period Ends 09/24/2008

Applicant

XIKAR, INC.

3305 Terrace Street

Kansas City, MO 64111 UNITED STATES

Goods/Services Affected by Opposition

Class 034. First Use: 2006/08/00 First Use In Commerce: 2006/08/00

All goods and services in the class are opposed, namely: CIGAR CUTTERS; NON-ELECTRIC CIGAR LIGHTERS NOT OF PRECIOUS METAL; HUMIDORS; AND CIGAR CARRYING CASES NOT OF PRECIOUS METAL

Grounds for Opposition

Attorney information

Deceptiveness

Priority and likelihood of confusion

Trademark Act section 2(a) Trademark Act section 2(d)

The mark is primarily geographically deceptively misdescriptive

Trademark Act section 2(e)(3)

Torres v. Cantine Torresella S.r.LFraud

808 F.2d 46, 1 USPQ2d 1483 (Fed. Cir. 1986)

Marks Cited by Opposer as Basis for Opposition

U.S. Registration No. 2177837 Application Date 08/16/1996

Registration Date 08/04/1998 Foreign Priority Date NONE

Word Mark HABANOS UNICOS DESDE 1492

Design Mark

Description of Mark The mark consists of a black rectangle with the design of a tobacco leaf and the wording “HABANOS UNICOS DESDE 1492.”

Goods/Services Class 034. First use:

raw tobacco, cigars, cigarettes, cut tobacco rappee, matches, tobacco, tobacco

pipes, pipe-holders, ashtrays, match boxes, cigar cases, and humidors

U.S. Registration No. 1970911 Application Date 09/22/1994

Registration Date 04/30/1996 Foreign Priority Date NONE

Word Mark LA CASA DEL HABANO

Design Mark

Description of Mark NONE

Goods/Services Class 034. First use: raw tobacco; cigars; cigarettes; cut tobacco; rappee; manufactured tobacco of all kinds; matches; tobacco; smoking pipes; pipe-holders, not of precious metal; ashtrays, not of precious metal; match boxes, cigar cases and humidors, not of precious metal

U.S. Application No. 77157193 Application Date 04/16/2007

Registration Date NONE Foreign Priority Date 04/13/2007

Word Mark HABANOS

Design Mark

Description of Mark NONE

Goods/Services Class A. First use: cigars

Attachments 75151320#TMSN.gif (1 page )( bytes )

74576950#TMSN.gif (1 page )( bytes )

77157193#TMSN.jpeg (1 page )( bytes )

havana collection.Opp. 77273188.pdf (11 pages )(49613 bytes )

Certificate of Service

The undersigned hereby certifies that a copy of this paper has been served upon all parties, at their address record by First Class Mail on this date.

Signature David B. Goldstein

Name David B. Goldstein

Date 09/22/2008

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEALS BOARD

In the matter of trademark application

Serial No. 77273188

Filed September 6, 2007

For the mark HAVANA COLLECTION

Published in the Official Gazette on May 27, 2008

CORPORACION HABANOS, S.A., d.b.a. )

HABANOS, S.A., and EMPRESA CUBANA DEL )

TABACO, d.b.a. CUBATABACO, )

) Opposers, )

v. ) Opposition No. BLANK

) DAVID GAROFALO, )

) Applicant. )

NOTICE OF OPPOSITION

Opposers CORPORACION HABANOS, S.A. (hereinafter “Habanos, S.A.") and EMPRESA CUBANA DEL TABACO (hereinafter “Cubatabaco) (together “Opposers") believe that they will be damaged by registration on the principal register of the mark HAVANA COLLECTION, Application Serial No. 77273188 (hereinafter “Application"), which was published for opposition on May 27, 2008, and, by and through their undersigned attorneys, hereby oppose the registration of said Application, and aver as follows:

THE PARTIES

1. Applicant Xikar, Inc. is a corporation located in Kansas City, Missouri and incorporated in Kansas.

2. Opposer Habanos, S.A. is a corporation organized under the laws of Cuba, with its principal place of business in Havana, Cuba.

3. Opposer Cubatabaco is a state corporation with independent juridical personality and independent property established by law No. 1191, dated April 25, 1966, of the Republic of Cuba, with its principal place of business in Havana, Cuba.

4. Opposer Habanos, S.A. currently owns, among others, the federal registration of the mark, HABANOS UNICOS DESDE 1492, U.S. Reg. No. 2,177,837, applied for on August 16, 1996, in the United States for “raw tobacco, cigars, cigarettes, cut tobacco rappee, matches, tobacco, tobacco pipes, pipe-holders, ashtrays, match boxes, cigar cases, and humidors” in International Class 34. Habanos, S.A. uses this mark, translated as “unique Havana cigars since 1492,” throughout the world exclusively for cigars that are of 100% Cuban origin, and related cigar accessories.

5. The mark HABANOS UNICOS DESDE 1492 appears regularly in advertisements for Habanos. S.A.’s 100% Cuban origin cigars and related products in international and United States publications. This mark is used in such advertisements both in Spanish and in English translation as “Habanos Unique since 1492” and “Havanas Unique since 1492.”

6. Opposer Habanos, S.A. is engaged, inter alia, in the trade, marketing, and advertising of Cuban cigars and related products, including cigar accessories, throughout the world, including in Cuba, and the export of Cuban cigars and related products throughout the world (with the exception of the United States due to the U.S. trade embargo). Habanos, S.A. emphasizes that its cigars are made in Cuba from 100% Cuban-grown tobacco in its promotion, marketing and advertising, including in advertisements in the U.S.

7. Opposer Cubatabaco currently owns, among others, the federal registrations in the United States of the mark LA CASA DEL HABANO, U.S. Reg. No. 1,970,911, applied for on September 22, 1994, translated as “the house of the Cuban cigar,” for “raw tobacco; cigars; cigarettes; cut tobacco; rappee; manufactured tobacco of all kinds; matches; tobacco; smoking pipes; pipe-holders, not of precious metal; ashtrays, not of precious metal; match boxes, cigar cases and humidors, not of precious metal” in International Class 34, and for LA CASA DEL HABANO, U.S. Registration No. 2,212,119, applied for on August 16, 1996, as a service mark in International Class 35 for “retail store services featuring tobacco and smokers’ accessories” and in International Class 42 for “social club services, bar services, and restaurant services.”

8. Opposer Cubatabaco’s LA CASA DEL HABANO Marks regularly appear in advertisements in the United States in connection with cigars that are of 100% Cuban origin and related products.

9. Opposer Cubatabaco currently owns the application in the USPTO for the certification mark HABANOS, Application Serial No. 77157193, in IC A for “cigars,” filed April 16, 2007. The mark “certifies that the cigars have their geographical origin in Cuba and are made from Cuban grown tobacco, `Cuba’ meaning the entire national territory of the Republic of Cuba.”

10. The term “HABANA,” the Spanish (and French) word for HAVANA, is an appellation of origin (also known as a denomination or indication of geographical origin) for Cuban-origin tobacco and tobacco products registered by Opposer Cubatabaco in 1967 in accordance with the 1958 Lisbon Agreement for the Protection of Appellations of Origin and their International Registration, as revised and amended.

11. The term “HABANOS” is the appellation of origin for cigars originating in the entire national territory of the Republic of Cuba, and was registered by Opposer Cubatabaco in 1967 pursuant to the Lisbon Agreement. Under Opposer Cubatabaco’s authority, Opposer Habanos, S.A. uses the “Habanos” geographical denomination of origin on all packages of its 100% Cuban origin cigars.

THE APPLICATION PROCEEDINGS

12. On September 6. 2007, Applicant filed an application in the PTO under Section 1(a) of the Lanham Act, 15 U.S.C. § 1051(a), to register the standard character mark HAVANA COLLECTION in IC 34 for “cigars; cigar cutters; non-electric cigar lighters not of precious metal; humidors; and cigar carrying cases not of precious metal.”

13. The Application claimed first use and first use in commerce dates of August 2006 for all the goods.

14. Applicant submitted a specimen showing use of the mark in connection with cigar cutters only.

15. On October 10, 2007, the PTO Examiner issued an Office Action initially refusing registration of the mark under section 2(a) and (e)(3) of the Act , stating: The primary significance of the term “Havana” is geographic. The cigars do not originate in this geographic location. The public is likely to believe that applicant’s goods come from this place because Havana, Cuba is a place where cigars are produced. Furthermore, this belief would materially influence consumers to purchase the goods and/or services because Havana, Cuba is renown for the production of cigars.

(citations omitted).

16. The Examiner also cited Opposer Cubatabaco’s prior pending HABANOS certification mark application, stating that there may be a likelihood of confusion between the two marks.

17. On April 10, 2008, Applicant submitted its Response to Office Action, in which it removed “cigars” from the recitation of goods. Applicant admitted that its “goods are not manufactured or produced in and have no connection with Havana,” but argued, without evidence, that “use of the word `Havana’ is not material to the purchasing decision.” Applicant also argued that its mark is distinguished from the cited HABANOS mark because it no longer includes cigars and does not use the word “habano” or “habanos.”

18. Upon information and belief, Applicant’s claimed first use and first use in commerce dates in its Application are prior to Applicant’s actual first use and actual first

use in commerce dates for at least some of the cited goods.

19. On May 27, 2008, the Application was published for opposition.

20. On June 24, 2008, the Board granted Opposers’ timely filed requests for an extension of time until September 24, 2008, to file a Notice of Opposition to the Application.

21. Applicant’s mark is, inter alia, primarily geographically deceptively misdescriptive, and geographically deceptive of the identified goods, and is confusingly similar to

Opposers’ above-identified registered marks in IC 34 for the same or similar goods, and with Opposer Cubatabaco’s pending HABANOS certification mark application.

THE MEANING OF “ HAVANA” AND THE ASSOCIATION OF CIGARS WITH HAVANA AND CUBA

22. The word “Havana” primarily refers to the largest city and the capital of Cuba.

23. The primary significance of the mark, HAVANA COLLECTION, is a generally known geographic location – Havana, Cuba.

24. The addition of the common term “collection” does not alter the mark’s primary geographic significance.

25. In addition to denoting the city of Havana, Cuba, “Havana” is used, recognized, and understood throughout the world, including in the United States, by both cigar consumers and within the cigar industry, to denote Havana’s most famous export — cigars that are of 100% Cuban origin, made exclusively from tobacco grown in Cuba and manufactured in Cuba,primarily in or near the city and province of Havana, Cuba.

26. Likewise, the Spanish word “Habano” (and its plural, “Habanos") is recognized among cigar consumers and in the cigar industry throughout the world and in the United States to denote cigars that are of 100% Cuban origin.

27. Numerous English language dictionaries and encyclopedias, including those published in the United States, define the word “Havana” to mean a cigar made in Cuba and/or from Cuban tobacco, in addition to denoting the largest and capital city of Cuba.

28. Spanish language dictionaries define “Habano” as relating to, or from, “La Habana” (Spanish for Havana, Cuba), or by extension the island of Cuba, or as a cigar made in Cuba from Cuban tobacco.

29. The leading English-language cigar books, including in book titles, consumer guides, and cigar magazines sold in the United States, and news and feature stories appearing in general circulation magazines, newspapers, and other publications directed to the general public in the U.S use the terms “Havana(s)” and “Habano(s)” to denote a 100% Cuban-origin cigar.

30. For decades prior to Applicant’s September 6, 2007 Application, the term “Havana” has been used to mean a Cuban-origin cigar.

31. Cigar accessories, including at least some of the goods identified in Applicant’s Application, are produced in Havana, Cuba.

32. It is common for manufacturers or distributors of cigars in the United States and elsewhere, as with Opposers, to also produce or distribute cigar accessories using the same marks as their cigar marks, in connection with the sale and promotion of their cigars, and to market their cigar accessories as related to their cigars.

33. Cigar consumers are also cigar accessories consumers, and commonly associate cigars with cigar accessories, including as to the source and location of the cigars and accessories.

34. Cuba is internationally recognized, including in the United States, as the most renowned country in the world for the growth of tobacco for cigars, and for the production and manufacture of cigars, including cigars of the highest quality, and Havana is internationally recognized, including in the United States, as the city and province most renowned for the manufacture and export of the highest quality cigars.

35. Consumers in the United States and elsewhere in the world strongly associate cigars with Cuba and particularly with Havana. Cuba.

36. Because of the powerful goods/place association between cigars and Havana, Cuba, and the common consumer association of cigars with cigar accessories, consumers are likely to believe that Applicant’s goods come from Havana, Cuba, or Cuba.

37. Applicant promotes its HAVANA COLLECTION goods by deliberately and falsely associating those goods with Havana, Cuba, and with Havana cigars, that is, cigars from Cuba.

38. Applicant has no reason to select a mark using the term “Havana” for cigar-related accessories not from Havana or Cuba, or to promote its non-Cuba goods by associating them with Havana, Cuba and Havana cigars, other than to seek to capitalize on the powerful consumer association of cigar products with Havana and Cuba.

39. The applied-for mark denotes, is, and will be understood by United States consumers as denoting, that the cigar accessories bearing that mark are manufactured in

Havana, Cuba, or Cuba.

40. As Applicant admitted, its goods do not come from, or otherwise originate in, Havana, Cuba or elsewhere in Cuba.

41. The cigar-consuming public is likely to believe that the place identified by the applied-for mark – Havana, Cuba - describes Applicant’s goods, and their geographic origin, when the goods in fact do not come from Havana or Cuba.

42. Consumers’ mistaken belief that Applicant’s goods come from Havana or Cuba, would be a material factor in such consumers’ purchasing decision.

INJURY TO OPPOSERS

43. Opposers believe that they will be damaged by the registration of the applied-for mark upon the Principal Register, including by Applicant’s use of that mark on cigar

accessories of non-Cuban origin. Such registration and use will deceive consumers into believing that Cuban-origin cigar-related products are presently available for purchase in the U.S.

44. Applicant’s mark, when used on or in connection with Applicant’s cigar accessories, is likely to cause confusion, or to cause mistake, or to deceive, with respect to

Opposers’ registered marks in IC 34 – HABANOS UNICOS DESDE 1492 & DESIGN and LA CASA DEL HABANO – for the same or similar goods, and with the prior pending application for Opposer Cubatabaco’s HABANOS certification mark.

45. Opposers’ success in marketing 100% Cuban-origin cigars and related cigar accessories to U.S. consumers as soon as U.S. law permits, including through use of the registered marks HABANOS UNICOS DESDE 1492 & DESIGN, LA CASA DEL HABANO, the applied-for certification mark HABANOS, will be damaged and diminished if Applicant is permitted to register a mark including the term “Havana” for cigar-related accessories, which deceptively suggests that Applicant’s goods are of Cuban origin.

FIRST GROUND FOR OPPOSITION

46. Opposers repeat and reallege each and every allegation set forth in paragraphs 1 through 45 of this Notice of Opposition as if fully set forth herein.

47. The applied-for mark, as used on or in connection with Applicant’s identified goods, is geographically deceptive and primarily geographically deceptively misdescriptive within the meaning of section 2(a), (e)(3) of the Lanham Act, 15 U.S.C. § 1052(a), (e)(3), for lack of the requisite nexus with Havana, Cuba or Cuba, and, therefore, registration of the mark must be refused.

SECOND GROUND FOR OPPOSITION

48. Opposers repeat and reallege each and every allegation set forth in paragraphs 1 through 45 of this Notice of Opposition as if fully set forth herein.

49. Applicant’s mark so resembles Opposers’ registered marks in IC 34 for the same or similar goods – HABANOS UNICOS DESDE 1492 & DESIGN, Reg. No. 2,177,837, and LA CASA DEL HABANO, Reg. Nos. 1,970,911 – and with the prior pending application for Opposer Cubatabaco’s HABANOS certification mark, Application Serial No. 77157193, in IC A, and used by Opposers in the U.S. in advertising, as to be likely, when used on or in connection with Applicant’s goods, to cause confusion, or to cause mistake, or to deceive, within the meaning of section 2(d) of the Lanham Act, 15 U.S.C. § 1052(d), and, therefore, registration of the mark must be refused.

THIRD GROUND FOR OPPOSITION

50. Opposers repeat and reallege each and every allegation set forth in paragraphs 1 through 45 of this Notice of Opposition as if fully set forth herein.

51. Upon information and belief, Applicant made a material misrepresentation of fact when it claimed first use and first use of the mark in commerce in August 2006 for all the identified goods in the Application.

52. Upon information and belief, the PTO relied upon Applicant’s representation that all of the identified goods were in use in commerce as of August 2006 in publishing the mark for opposition.

53. Because, upon information and belief, Applicant’s aforesaid representations were false, registration of the mark must be refused.

WHEREFORE, Opposers Corporacion Habanos, S.A. and Empresa Cubana del Tabaco pray that registration of the mark in Application Serial No. 77273188 be refused, and that this Opposition be sustained in favor of the Opposers.

Dated: September 22, 2008

Respectfully submitted,

By: /David B. Goldstein/

DAVID B. GOLDSTEIN

RABINOWITZ, BOUDIN, STANDARD, KRINSKY & LIEBERMAN, P.C.

111 Broadway – Suite 1102

New York, New York 10006-1901

212-254-1111

[email protected]

Attorneys for Opposers Corporacion habanos, S.A. and Empresa Cubana del Tabaco

CERTIFICATE OF ELECTRONIC FILING

I hereby certify that this Notice of Opposition to registration of the mark in Application Serial No. 77273188 is being filed electronically today, September 22, 2008, on the Electronic System for Trademark Trials and Appeals for the United States Patent and Trademark Office.

/David B. Goldstein/

DAVID B. GOLDSTEIN

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct copy of the foregoing Notice of Opposition was served on Applicant by mailing, postage prepaid, said copy on September 22, 2008 via U.S. Certified Mail, return receipt requested, to the address of record and to the attorney and correspondent listed for Application No. 77273188.

Xikar, Inc.

3305 Terrace Street

Kansas City, MO 64111

J. David Wharton, Reg. No. 25,717 STINSON MORRISON HECKER LLP

1201 Walnut St

Suite 2800

Kansas City, MO 64106-2159

/David B. Goldstein/

DAVID B. GOLDSTEIN

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i don't find it at all odd that they make such claims. not a copyright lawyer or patent attorney but i think they have a very good case - will depend on laws of jurisdiction where claim filed, and possibly, if you can believe it, political machinations behind the scene, though one would hope otherwise. i would have no doubt that “deliberately and falsely associating those goods with Havana” is exactly what they are trying to do. whether they can get away with it depends on the above.

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Not a lawyer so I don't know what I'm talking about.

I do, however, know that a quick search pulled up 10 cities named Havana in the US...

AL Havana Hale County

AR Havana city Incorporated Area Yell County

FL Havana town Incorporated Area Gadsden County

IL Havana city Incorporated Area Mason County

KS Havana city Incorporated Area Montgomery County

MN Havana township Steele County

ND Havana city Incorporated Area Sargent County

OH Havana Huron County

SD Havana township Deuel County

TX Havana Hidalgo County

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» Not a lawyer so I don't know what I'm talking about.

»

» I do, however, know that a quick search pulled up 10 cities named Havana

» in the US...

suspect that given history, as in the history of those towns and of havana in cuba, no sane judge would wear that, but stranger things...

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» otherwise. i would have no doubt that “deliberately and falsely

» associating those goods with Havana” is exactly what they are trying to

» do.

It's certainly within the realm of possibility that their aim was intentionally deceptive in naming, but even if

that were the case, I have to believe that only an absolute neophyte to cigars might think these products

are associated with Cuba.

Though I suppose common sense can be left at the door of a courtroom.

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Based on my past experience, I think it's not a very viable lawsuit. There are a TON of products that use the word "Havana" in their name, so many, that a "reasonable person" wouldn't assume it was made in Havana just based on the product name.

In fact, I bought a small bistro table and chairs a few months ago that was named "Havana Collection".

The "likelihood of confusion as to the source" (ie: company) is typically the case with this kind of lawsuit. For instance, Xikar could sue another company that wanted to use the name Zicar.

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Actually, this is not a lawsuit from what I can tell. It's merely an opposition to the trademark publication.

What happens when you file for a trademark, the examining attorney reviews past trademarks for infringement, if non are found, your trademark is published of in the USPTO newsletter. If there is no opposition within 30 days, you are granted the trademark.

This seems to be the opposition to the trademark publication.

Side story:

A competing humidification company filed a temporary restraining order against me just days prior to leaving for my first RTDA 3 years ago. They objected to the use "Humidi-Puck" as my product name. After hiring 4 attorneys and listening to their attorneys demands that they own the rights to the term "humidi" and that I was to reprint everything at the RTDA with my product name on it (ridiculous), I decided to fight them. In the 11th hour and an event that no attorney I have ever talked to had ever heard of happening, the judge called all the attorneys for a conference call and awarded the company the temporary restraining order. That was it, no reprinting, etc...

So, I quickly change the name and attend the RTDA (since I had so much $ tied up in the booth space already). A few months after returning from the RTDA, the USPTO awarded me the "Humidi-Puck" trademark - ROFLMAO!

I truly believe in karma and they will get their just dues some day for picking on the little guy.

~M

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» Based on my past experience, I think it's not a very viable lawsuit. There

» are a TON of products that use the word "Havana" in their name, so many,

» that a "reasonable person" wouldn't assume it was made in Havana just

» based on the product name.

»

» In fact, I bought a small bistro table and chairs a few months ago that

» was named "Havana Collection".

»

» The "liklihood of cofusion as to the source" (ie: company) is typically

» the case with this kind of lawsuit. For instance, Xikar could sue another

» company that wanted to use the name Zicar.

Trademark infringement has to do with the product being offered and the companys use of an established name to sell a simular product.

they could not sue a furniture company.

Xikar has chosen their name, so that it is unique and nobody in the cigar industry could sue them over it, but the name "Havana" is to general a word, it can be proven that it is not unique, but descriptive of a product, in this case however it is descriptive of the origin of the product and that makes this an interesting case

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Many here know that Cubatabaco sued General Cigar for allegedly infringing the Cohiba trademark and tradename. To me, this had more potential merit than the legal claim in the opposition quoted above. After all, "Cohiba" is not as "generic" as the name "Havana."

After prevailing in the Federal District Court, Cubataco lost on appeal in the Cohiba case.

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