Banned: ‚Habano Seed‘ for non-Cuban cigars according to court judgement

Designations such as „Habano Seed“, „Cuba“ and „Havana“ are not permitted for cigars made from non-Cuban tobaccos. Following an action brought by Corporación Habanos S.A., the Munich Higher Regional Court has now also ruled, after the Munich Regional Court of First Instance, that „Cuba“ and „Havana“ and derivatives thereof are geographical indications of source with a special reputation in relation to cigars and enjoy correspondingly extended protection under trademark law. 

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Habano Seed and other tobacco names

The legal dispute arose from the use of terms such as „Habano Seed“, „Piloto Cubano“, „Habano wrapper leaf“, „Habano wrapper leaf from Ecuador“, „Habano seed wrapper leaf from Ecuador“ or „Binder Habano Jalapa - Nicaragua“ for cigars/cigarillos made from non-Cuban tobaccos.

As now confirmed in the appeal judgement, such claims are inadmissible, even if the tobaccos grown outside Cuba originated in Cuba by taking seeds from there to other countries after the Cuban revolution.

The court leaves open whether such disputed claims are true, because in its judgement a seed originally grown in Cuba, which was propagated in another place over several vegetation cycles, cannot simply be equated with tobacco grown on Cuban territory. Rather, in addition to genetic characteristics, soil and climate conditions - the respective „terroir“ - can also influence the characteristics and quality of the tobacco, especially as the annual tobacco plant has to be reseeded every harvest season.

Special reputation and prestige

With regard to the special reputation of „Cuba“ and „Havana“, the Munich Regional Court stated that the island of Cuba and its capital Havana do not only stand for an attitude to life and are not only representative of cigar enjoyment. Rather, the terms “Havana“ and "Cuba" have a corresponding reputation in terms of quality in relation to cigars and their components due to the quality and selection of the processed tobaccos and due to the type of production.

The purchaser of such cigars - just like a significant proportion of non-smokers - associates a particular prestige with the designations. As a result, the OLG Munich confirms this finding and states that the respective consumer does not even have to be aware of the specific quality of Cuban tobacco products, rather the general - actually existing - perception that such products originating from Cuba have a special quality is sufficient.

According to the Munich Higher Regional Court, the Regional Court had rightly upheld the action brought by Corporación Habanos S.A. in its entirety. The special reputation of the geographical indications of origin „Cuba“ and „Havana“ is decisive and expressly confirmed. In the opinion of both courts, designations such as „Habano Seed“, „Piloto Cubano“ or „Habano wrapper“ unfairly impair this special reputation without justification.

Additional information in connection with „Habano Seed“ etc. not permitted

Additional indications such as „from Ecuador“ or „Jalapa - Nicaragua“ do not change this result. In the words of the Court of Appeal, the defendant, through its use of the disputed designations, is acting in the wake of the protected geographical indications of origin „Cuba“ and „Havana“ in order to benefit from their appeal, their reputation and their prestige and thus, by way of an image transfer, to transfer the associated quality concepts to its own goods.

The judgement (OLG Munich, file number 6 U 120/22) is not final.

Cuban seeds have not been exported for decades

5^TH Avenue (importer of Cuban cigars for Germany, Poland and Austria) has long been convinced that references to alleged or supposedly original „Cuban seeds“ are of little help to cigar smokers. Tobaccos are annual plants and adapt strongly to soils and climatic conditions, with the same seed developing very different characteristics in different growing areas within a short period of time. 

Genuine Cuban seeds have been bred exclusively for Cuban tobacco production for many decades and are not exported. In addition, there is a unique tradition of craftsmanship and unrivalled knowledge of the secrets of the best cigars. There are many reasons for Cuba's special reputation for cigars.

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