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Recent discussions before the World Trade Organization have put the Office of the U.S. Trade Representative (USTR) in the awkward position of defending a U.S. law that many intellectual property specialists say could torpedo overseas U.S. IP rights. The situation is even more puzzling because a former patent commissioner has joined ranks with a Cuban �migr�’s beverage company in the dispute, appearing to undercut the very Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement he helped to create. Bruce A. Lehman, who was the Clinton Administration’s assistant secretary of commerce and U.S. commissioner of patents and trademarks, has voiced support for Section 211 of the Budget Reconciliation Act of 1998. Sponsored by both Florida senators, it would bar U.S. courts from upholding trademarks of Cuban companies confiscated by the Castro regime without compensation to their former owners. This would benefit Bacardi and Co. Ltd. of Bermuda and any other company similarly treated. In a telephone interview on Aug. 7 to elicit Lehman’s reasons for his support, the openly gay ex-commissioner’s remarks tended to fall in the category of personal condemnation of Fidel Castro: “homophobia personified” and “a big, fat, cigar-smoking macho” who is “attempting to project his tyranny onto the IP system.” SNEAK ATTACK Section 211 was enacted without input from the usual IP sources. One Washington insider, who spoke on condition of anonymity, said that the section was passed “in the dead of night” and was signed into law two weeks before anyone from either the House or Senate judiciary committees knew of its existence. Critics claim the legislation was all but drafted by lawyers working on behalf of Bacardi, which is locked in a bitter battle with Pernod Ricard of France over rights to a trademark for Havana Club rum. That dispute has been in and out of federal court in New York since the early 1990s, and is the subject of a petition for hearing by the U.S. Supreme Court in the next term. Havana Club v. Bacardi Club, No. 99-1957. When Section 211 was enacted, an internal memo sent to U.S. Trade Representative Charlene Barshefsky on Nov. 27, 1998, cautioned that its “language is problematic because it violates our obligations under the TRIPs agreement.” Now the USTR’s office must argue on behalf of that law before the World Trade Organization (WTO) because, at the end of July, the European Union complained that Section 21 is illegal under the “national treatment” section of TRIPs, which mandates that a nation accord all other countries the intellectual property rights that are available to its own citizens. That case is expected to go to a WTO dispute resolution panel in early fall. Lehman says the bottom line in the dispute is that the Castro government illegally seized the Havana Club assets and has no right to license the trademark to French interests. He laid out his position in an article in The New York Law Journal on March 29. In it, he noted that he was “often the [Clinton] Administration’s point person in international negotiations on intellectual property rights.”‘ And of critics who say that Section 211 violated TRIPs, he wrote, “[S]uch a claim would ignore the well-accepted international norm against recognition of uncompensated confiscation of property rights — certainly a norm that those who crafted the TRIPs agreement did not intend to compromise.” In a letter that appeared in the newspaper in response to Lehman’s article, Jean-Fran�ois Boittin, minister counselor for economic and commercial affairs to the French ambassador to the United States, accused Lehman of writing to foster “his own parochial interests.” Lehman says that Bacardi is not a client. He acknowledged that it, like IBM and Time-Warner, has contributed to the International Intellectual Property Institute, a nonpartisan, not-for-profit institution he founded in 1999.

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