Welles Orr Discusses U.S.-Cuba Intellectual Property Disputes in the Latin America Advisor

"What Is the Status of U.S.-Cuba Intellectual Property Disputes?"
Inter-American Dialogue's Latin America Advisor
05.09.11

Welles Orr discusses the status of intellectual property disputes between the U.S. and Cuba, saying, "An interesting aspect of today's status quo is how the value of assets the Cuban government confiscated, or attempted to confiscate, in the 1960s has changed over the years. Physical assets (such as factories) may look much less significant now, whereas intangible property such as trademarks may have appreciated substantially. While tribunals around the world have agreed that the Cuban government failed to adequately compensate the owners of intellectual property it sought to confiscate, some have found the confiscations were nevertheless effective—in the sense that the Cuban government did obtain ownership of, and commercial rights to, the IP in question. In the United States, exiled families have been able to maintain ownership by timely registering and duly exploiting marks and brands they had launched in Cuba. Any transactions entered into by the Cuban government, purportedly awarding commercial rights in such marks to other persons or companies, would likely be considered invalid—although at present Section 211 largely prevents such disputes from finding their way into U.S. courts anyway.

Restoration of normal commercial interaction between Cuba and the United States will require a staged approach whereby expropriation issues, political/human rights issues and others can each be addressed gradually and in parallel. Frontloading the hardest items—expropriation claims are surely in this category— will not work. Such a staged/parallel approach would amount to a paradigm shift in existing U.S. law, and it will require a careful collaboration between the U.S. government's political branches. As part of that collaboration, it will be essential to fashion sensible arrangements in sectors where huge distortions have arisen behind the curtain of the embargo, and where a simple and abrupt restoration of bilateral commerce would be inappropriate."

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