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2ND CIRCUIT OVERTURNS ‘COHIBA’ CIGAR RULING NEW YORK — Cubatabaco, the Cuban cigar company that produces the famous Cohiba cigar, cannot stop a U.S. company from selling cigars of the same name, a federal appeals court ruled Thursday. The unanimous ruling from the Second Circuit U.S. Court of Appeals reversed a ruling last year that gave Cubatabaco rights to the Cohiba trademark in the United States under the “famous marks doctrine,” even though it had never registered the mark here. The Second Circuit held that since Cubatabaco is barred from selling its cigars by a U.S. embargo against Cuba, it cannot acquire property rights in U.S. trademarks. The court also rejected arguments that Cubatabaco was entitled to relief because use of its famous mark in the United States caused consumer confusion. “None of United States law, the facts in this case or international treaties warrants such acrobatics in this case,” Judge Chester Straub wrote for the court in Cubatabaco v. General Cigar, 04-2527-cv. General Cigar Co. Inc. registered the name Cohiba in the United States in 1981 but abandoned the mark in 1987. As the popularity of cigars began to rise, though, the company registered the mark again and reintroduced its Cohiba line of cigars. Cubatabaco sued, alleging that its cigars were famous enough to afford it protection under the “famous marks doctrine.” — New York Law Journal JUDGE SAYS TIMES CAN PROTECT PHONE RECORDS NEW YORK — A federal judge in Manhattan ruled Thursday that a qualified reporter’s privilege prevents a prosecutor from obtaining the telephone records of two New York Times reporters for a grand jury investigation into government leaks. Southern District of New York Judge Robert Sweet ruled that the phone records of reporters Judith Miller and Philip Shenon are protected by the privilege under both the First Amendment and federal common law. The records are being sought by federal investigators probing leaks of impending raids on Islamic charities in the wake of the Sept. 11, 2001, terror attacks. Judge Sweet said his 120-page decision in The New York Times Co. v. Gonzales, 04 Civ. 7677, applied the recognition of the qualified privilege in the Second Circuit U.S. Court of Appeals to the context of a grand jury investigation. In a case that presented “competing considerations of the role of secrecy in our society,” Judge Sweet said the private and public interests in allowing reporters to protect the identity of confidential sources trumped an unpersuasive government claim that the records were crucial to its criminal investigation. “To deny the relief sought by The Times under these circumstances, i.e. without any showing on the part of government that the sought records are necessary, relevant, material and unavailable from other sources, has the potential to significantly affect the reporting of news based on information provided by confidential sources,” he said. Judge Sweet said it did not matter that the records are being sought by prosecutors directly from phone companies and not from the reporters themselves. — New York Law Journal

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