Cuban-American businessman Luis Felipe Padrón did not see it coming that his main job in the weeks that followed the launch of his soft drink brand in the United States would be to defend himself against the accusation of being a “communist.” His company, Always Food Sales & Consultant Corp., sold them under the name “Ciego Montero” since Padrón acquired the rights for the U.S. market to the brand belonging to Los Portales S.A.
The soft drinks, which appeared in stores in South Florida in mid-2023, are made in Colombia, following a formula that, according to Padrón, reproduces the flavors that remained in the memory of emigrated Cubans. The label is also a copy of the one used by the Los Portales factory in Pinar del Río. They are flavors and a commercial image that have accompanied Cubans for decades, generating a relationship from which Padrón and his associate, lawyer Tony Haber, are now trying to derive economic benefit.
In April 2022, Haber managed to take ownership of the Ciego Montero brand in the United States, after Cuba did not renew it before that country’s Patent and Trademark Office (USPTO), an agency attached to the U.S. Department of Commerce responsible for issuing patents, and registering trademarks and copyrights. After a few months, Padrón contacted it to start the project. Everything seemed to be going smoothly until, shortly after the soft drinks arrived on the shelves, complaints began on social media. Padrón himself would be asked in a supermarket if he was a communist, while a rumor spread that the Cuban government made profits from sales in Miami.
“That’s what hurts me about this story…, that they tell me that I have ties to a government that I escaped from [sic] 43 years ago and that what it did was hurt me a lot, because I was not happy in Cuba,” Padrón lamented in an interview for El Nuevo Herald.
“Cuban style”
In addition to Ciego Montero, Luis Felipe Padrón claims to own in the United States the Cachito, Guayabita del Pinar and TuKola brands, and the Manacas, Mayabe and Tínima beers; of the latter he said he was about to launch “a production.” In parallel, the company he presides over, Always Food Sales & Consultant Corp., distributes products from the Doña Delicias, Findy and Pelly brands, according to him.
Doña Delicias, Findy and Pelly were created by Papas&Co., a Cuban company established in 1997 under the modality of joint ownership. Although its production on the island has decreased due to the economic crisis, Papas maintains these brands in the market. During the recently concluded Havana International Trade Fair, the company’s stand was decorated with giant signs of the three products.
During the “thaw” between Cuba and the United States (2014-2016), the number of U.S. brands registered in Cuba doubled (up to over 6,000) and, to a lesser extent, the number of official Cuban brands in that country. But Trump’s sanctions, the pandemic and the lack of a favorable policy from the Biden administration interrupted the rapprochement. Under these circumstances, Cuba decided not to renew some of its brands in the United States and other countries.
This is not the first time that Cuban brands or products of supposed Cuban origin have caused controversy outside the country. In October 2020, a complaint published on X — former Twitter — by the CIMEX corporation against the online sale and in physical stores in Canada of a plagiarized Cubita coffee. Around the same time, also in Canada, Cuban emigrants had called for a boycott of another coffee brand that was promoted as Cuban.
That last case is unique. Upon inquiry, Reuters’ fact-checking service would reveal that the coffee in question was made by a U.S. company called Mayorga Organics, from a mixture of Honduran, Nicaraguan and Peruvian beans. In an interview with the British news agency, Martín Mayorga, CEO of the company, said he was surprised by the criticism from Cuban emigrants for his alleged relations with the island’s government, and attributed them to a wrong interpretation of the product’s advertising. “The concept of Cuban coffee refers to a style and flavor, not literally to it being produced in Cuba,” he justified.
The packaging of Mayorga coffee leads to confusion, since it insists on its Cuban origin without providing further explanations about it. Even after that scandal, its stores on Amazon and other e-commerce platforms privilege its supposed origin, bordering on what could be described as deceptive advertising.
Getting around the law
On November 13, 2023, the United States House of Representatives approved a bill that prohibits the “validation and use of trademarks” confiscated by the Cuban government after 1959. If it becomes an act — it still must be endorsed by the Senate and receive the presidential signature — the text would prevent U.S. courts and government institutions from recognizing the rights of companies based on the island. Currently, Cuban companies can register brands in the United States and even issue complaints to companies based in that country that usurp them.
As an example that is not a coincidence, the Republican representative for California Darrel Issa, one of the promoters of the bill in the lower house, declared that day to Martí Noticias that “the Cuban regime ‘had the nerve’ to sell to the United States and the world products that had actually already been stolen, as is the case of Havana Club rum.”
Since it bought the “brand with the original recipe” of Havana Club from the Arechabala family in 1994, the Bacardi company became the standard bearer of the economic war against Cuba; in particular, efforts to prevent Cuban brands from being registered — and potentially marketed — in the United States. The lawyers of the “bat company” played a leading role in drafting what would become the Helms-Burton Act, and embarked on a long judicial battle for control of the rights of Havana Club in the northern nation.
The most recent chapter in that saga occurred in April 2022, when a federal court in the state of Virginia ruled in favor of the USPTO in a lawsuit filed against it by Bacardi. The rum company questioned the decision to renew Cubaexport’s rights over Havana Club, pointing out that it prevented it from “registering its own Havana Club brand,” which it produces in Puerto Rico.
Tribunal estadounidense ratifica que la marca Havana Club es propiedad cubana
However, Bacardi has not stopped using the commercial image of the Cuban rum. Six months after the court ruling, the company presented a special edition of 36,000 bottles, exclusively for the United States, of what it called “the rum of exile.” Despite not having the rights to the brand, the bottles carried the Havana Club label and were promoted as a tribute to the original product presented by Arechabala in 1934.
A similar position has been maintained for decades by General Cigar, the world’s largest producer of premium cigars. A lawsuit filed against it by Cubatabaco and its corresponding litigation demonstrated that as early as 1978 the U.S. company knew that Cohíba was a Cuban brand of cigars. Even so, it repeatedly tried to register it in the United States, making it appear that it was marketing legitimate cigars, despite making them in the Dominican Republic. The litigation has spanned more than thirty years.
In December 2022, the USPTO court ruled in favor of Cubatabaco and ordered the cancellation of all legal registrations presented by General Cigar. But today that company continues to promote Cohíba among its brands, and market it alongside illegitimate versions of other classic Cuban vitolas such as Montecristo, Romeo y Julieta, and Partagás. In fact, in August, Weller by Cohiba 2023 went on sale, a “limited” edition, destined for the U.S. market.
The first version of the bill against the registration of Cuban brands in the United States had been presented in May 2021 by Senators Marco Rubio (Republican of Florida) and Bob Menéndez (Democrat of New Jersey, recently accused of corruption and acting as an agent of the Egyptian government). At the time, in front of his supporters in Miami, Rubio insisted that “the policy of the United States has been to support the legitimate owners whose copyright has been stolen”; the new regulation would expand the possibilities of preventing “maneuvers of the regime,” he said. But like a good politician, he took the opportunity to benefit companies linked to his congressional career, such as tobacco companies.
The recognition of Cuban cigar brands, and a hypothetical entry into the United States market, would compromise the competitiveness in the U.S. market of General Cigar and the rest of the U.S. companies in the industry. And for politicians like Rubio, one of those who has most consistently defended U.S. tobacco companies.
For years, the Cuban-American congressman has been one of the most active defenders of tobacco companies against federal public health regulations. Bills like the one he co-sponsored in January 2023, in theory seek to protect small producers, but in practice they mainly protect large companies. It is a “win-win” equation: while defending the businesses of his donors, he deprives Cuban companies of a vital source of income.
This philosophy is also potentially dangerous for Cuban private businesspeople. Although in theory it is not prohibited for residents in Cuba to register their brands with the USPTO, in reality their room for maneuver is very limited. Especially if a U.S. company decided to appropriate a brand born on the island.
Carrying out a claims process in U.S. courts is probably not within the reach of most new Cuban entrepreneurs. And not even a favorable ruling would guarantee the recovery of the usurped rights, as we saw in the previous examples. The cases of Cubaron and Cubatabaco have shown that when it comes to Cuba, economic rationality is subordinated to political interests.
Author
Amado Viera
