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Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
ESTTA Tracking number: ESTTA351787
Filing date: 06/09/2010
IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
Proceeding 92051542
Party PlaintiffCorporacion Habanos, S.A. and Empresa Cubana del Tabaco, d.b.a.Cubatabaco
CorrespondenceAddress
David B. GoldsteinRabinowitz, Boudin, Standard, Krinsky et al.111 Broadway, Suite 1102New York, NY 10006-1901UNITED [email protected]
Submission Motion to Compel Discovery
Filer's Name David B. Goldstein
Filer's e-mail [email protected], [email protected]
Signature /David B. Goldstein/ Date 06/09/2010
Attachments Motion to compel.pdf ( 21 pages )(59353 bytes )Declaration & Exhibits.pdf ( 81 pages )(4154153 bytes )
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IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
________________________________________________
CORPORACION HABANOS, S.A., and EMPRESA )
CUBANA DEL TABACO, d.b.a. CUBATABACO, ))
Petitioners, )
)v. ) Cancellation No. 92051542
) Registration No. 2,890,975
FINCK CIGAR COMPANY, ))
Registrant. )
)
MOTION TO COMPEL DISCOVERY AND TO SUSPEND PROCEEDINGS
Pursuant to 37 CFR 2.120(e), and TBMP 411, 510, 523, Petitioners Corporacion
Habanos, S.A. and Empresa Cubana Del Tabaco, d.b.a. Cubatabaco (Petitioners) hereby move
to compel discovery from registrant Finck Cigar Company (Finck or Registrant), to suspend
the instant proceeding with respect to all matters not germane to the motion pending disposition
of the motions to compel, and to reset the deadlines for close of discovery, pretrial disclosures
and testimony periods after disposition of the motion. As set forth in more detail below, and in
the Declaration of Daniel S. Reich (Reich Decl.), filed herewith, Petitioners made a good faith
effort to resolve the issues raised by this Motion, without success. See 37 C.F.R. 2.120(e)(1);
TPMP 523.02.
1. As set forth below, Petitioners seek to compel complete responses toInterrogatories 8, 10-15, 17-20, 22-23, 27-28, 30-32, and to Document Requests 1, 3, 5-8, 10-18,
20-28, 34-38, 43.
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Background Facts
2. Fincks HAVANA BLEND mark, Registration No. 2,890,975, for cigars madefrom Cuban seed tobacco, was registered under section 2(f) of the Lanham Act (the Act) on
October 5, 2004. Petitioners filed a timely petition for cancellation dated October 2, 2009, in
which they asserted that Fincks Registration should be cancelled because, inter alia, Fincks use
of the mark is deceptive and primarily geographically deceptively misdescriptive for lack of the
requisite nexus with Havana, Cuba, Cuba, or Cuban-origin cigars, and deceptive and deceptively
misdescriptive in that it misdescribes Fincks cigars as originating in Cuba or Havana, Cuba,
pursuant to sections 2(a), (e)(1), (e)(3) of the Act; and alternatively, if Fincks mark is not found
to be deceptive, primarily geographically deceptively misdescriptive, or deceptively
misdescriptive, then Fincks use of the mark is merely descriptive and primarily geographically
descriptive, and has not become distinctive of Fincks goods. [D.E. 1] Finck filed its Answer
and Affirmative Defenses on November 16, 2009 [D.E. 4], and the parties exchanged Initial
Disclosures on January 13, 2010.
3. Finck has been represented by counsel at all times.4. Finck originally applied to register HAVANA BLEND for cigars. The United
States Patent and Trademark Office (USPTO) Examiner, David C. Reihner, issued an Office
Action, stating,
Registration is refused because the proposed mark consists of or comprisesgeographically deceptively misdescriptive matter in relation to the identified goods.
Trademark Act Section 2(e)(3), 15 U.S.C. 1052(e)(3) .... The primary significance of
the term Havana is geographic. The public is likely to believe that applicants goodscome from this place because Havana is renown for cigars. Furthermore, this belief
would materially influence consumers to purchase the goods because purchasers
would buy the goods with the mistaken belief that the goods originate in Havana,
Cuba, when they do not, and purchase the goods based upon that mistaken belief.
Petition, 13-14 (internal citations omitted); see HAVANA BLEND Application File. Finck
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responded to the Office Action by amending its goods from cigars to cigars made from Cuban
seed tobacco, without providing any information to the USPTO supporting or explaining this
amendment, and did not otherwise take issue with the Examiners finding that the mark was not
registrable under section 2(e)(3) for cigars. Id. 15. Finck never claimed to the USPTO that it
used tobacco that itself came from Cuba in its HAVANA BLEND cigars.
5. This case raises many of the same issues as Corporacion Habanos, S.A. v. Anncas, Inc., 88 USPQ2d 1785 (TTAB 2008), in which the Board refused registration of the
mark HAVANA CLUB for cigars made from Cuban seed tobacco, pursuant to section 2(e)(3).
As here, the applicant first sought to register HAVANA CLUB for cigars. Id. at 1787, 1793.
As here, the same USPTO Examiner, Mr. Reihner, initially refused registration under section
2(e)(3). Id. at 1788. As here, the applicant amended its goods from cigars to cigars made
from Cuban seed tobacco, without any information supporting or explaining the amendment,
and the USPTO then published the mark for opposition. Id. at 1787. After discovery and a trial,
the Board held that there is an insufficient connection between Cuban seed tobacco, which is
descended from tobacco seeds taken from Cuba many decades ago, and Havana to support a
finding that cigars made from Cuban seed tobacco come from or originate in Havana. This is
particularly the case [when] the recordshows that cigars from Cuban seed tobacco share few, if
any, qualities or characteristics of genuine or 100% Cuban cigars. Id. at 1793 (finding that the
connection between applicants intended goods and Havana is far too tenuous). The Board,
however, did not explicitly adopt aper se rule that non-Cuban cigars claimed to be made from
Cuban seed tobacco cannot be registered under section 2(e)(3), but rather addressed the
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evidence in that case, including the expert testimony submitted by Habanos, S.A., the Opposer
there, and one of the Petitioners here.1Id. at 1792-93.
6. Prior to serving discovery requests, Petitioners were aware from Fincks internetadvertising that Finck claimed to include in its Havana Blend cigars a small amount of tobacco
that Finck claimed to have been grown in Cuba in 1959, prior to the imposition of the U.S. trade
embargo (alleged Cuban Tobacco). In its advertisements, Finck variously claimed:
obviously we dont have a huge amount of this tobacco left, but there is enough in these cigars
to give them that unique Cuban flavor you cant get anywhere else; filler tobaccos from Brazil,
Nicaragua, Connecticut and a little pre-embargo Cuban filler; authentic Cuban tobacco... not
Cuban seed grown in Honduras or the Dominican Republic; the unique taste that comes only
from Cuban tobacco; limited number of bales of Cuban tobacco from 1959. See Reich Decl.
15, Ex. H.
7. In light of the Boards decision inAnncas; Fincks unelaborated amendment of itsgoods in its application from cigars to cigars made from Cuban seed tobacco; and its various
advertising claims regarding use of alleged Cuban Tobacco, Petitioners sought information in
discovery, as more specifically detailed below, specifically directed to Fincks Cuban seed
tobacco and alleged Cuban Tobacco claims, including evidence of the sources of the seeds and
tobacco, such as their claimed geographic origin and varietals, how much alleged Cuban
Tobacco Finck claims to use in its HAVANA BLEND cigars, the conditions under which the
alleged Cuban Tobacco from 1959 has been stored, persons with such knowledge, and what that
knowledge is, and how Finck promotes its HAVANA BLEND products, including any
1 Although not directly germane to this motion, it remains Petitioners view that a composite mark for
HAVANA ___, using a common or generic term such as CLUB or BLEND, isper se unregistrable fornon-Cuban origin cigars under section 2(e)(3), whether the goods are identified to the USPTO as cigars
or cigars made from Cuban seed tobacco.
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associations with Havana, or Cuba, or alleged Cuban Tobacco. As inAnncas, the information
regarding the tobacco and tobacco seeds is also necessary for evaluation by Petitioners experts.
SeeAnncas, 88 USPQ2d at 1792-93. Petitioners also sought evidence supporting Fincks section
2(f) acquired distinctiveness representation to the USPTO.
8. Specifically, on February 9, 2010, Petitioners served by mail Petitioners First Setof Interrogatories (Interrogatories) and Petitioners First Request for Production of Documents
and Things (Document Requests), requiring service of written responses and production of
documents within 35 days, i.e., March 16, 2010, pursuant to FRCP 33 and 34, 37 CFR 2.120,
and TBMP 403. See Declaration of Daniel S. Reich (Reich Decl.), Exhs. A, B, filed
herewith. On March 12, 2010, counsel for Petitioners agreed to Fincks counsels request to
extend the time to respond until March 26, 2010. Reich Decl. 5 & Exh. C.
9. On March 26, 2010, Finck served Registrants Objections and Responses toPetitioners First Set of Interrogatories to Registrant (Interrogatory Responses), Registrants
Objections and Responses to Petitioners First Request for Production of Documents and
Things (Document Responses), 91 pages of documents, one Havana Blend cigar box, and
some Havana Blend cigar labels. Reich Decl. Exhs. D, E. Of the 91 pages of documents
produced, 16 were from the publicly available Application File, and 67 were unrelated
advertising for other products. Of the remaining 8 pages, 1 page appeared to be advertising for
HAVANA BLEND cigars from a catalog distributed by Wally Franck Ltd., 5 pages were
advertising for Fincks HAVANA BLEND cigars (3 pages from a 2010 catalog distributed by
Finck Cigar Company, and two pages of a printout of a page from the Finck Cigar Company web
site listing Havana Blend cigars), and two were photographs of a paper wrapper with writing that
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states PRODUCT OF CUBA BOND and some numbers. Finck did not produce a privilege log
or identify any information or documents that it claimed were subject to a privilege.
10. As set forth below, Fincks Interrogatory responses and Document production arewoefully inadequate, and Finck should be compelled to provide complete Interrogatory
responses and document production.
Petitioners Good Faith Efforts to Resolve the Discovery Dispute
11. Prior to bringing this motion to compel, Petitioners made extensive good faithefforts, through telephone conference and correspondence with Finck, to resolve the issues
presented in this motion, but the parties have not been able to reach agreement. Reich Decl. 8.
12. At Petitioners request, counsel for the parties held a lengthy telephonic discoveryconference on April 14, 2010, in which counsel for Petitioners went over each individual
interrogatory response and document response and production that they contended were
inadequate and incomplete, including explaining why they considered the responses inadequate
and incomplete, as well as relevant to the cancellation proceeding, and requested that the
inadequate production be remedied. Reich Decl. 9, 10 & Exh. F. During the conference,
counsel for Finck did not represent that Finck had provided all the documents or other
information in Fincks possession, custody, or control responsive to the discovery requests, and it
is patently obvious that it had not done so. Reich Decl. 10.
13. During the conference, Petitioners counsel stated that they would be willing toaccept a representation by Finck that the amount of alleged Cuban Tobacco used in each
HAVANA BLEND cigar comprises no more than two percent of the cigars tobacco, in lieu of
documents and other information supporting that claim (but subject to production of documents
and other information supporting the claim that the tobacco in fact came from Cuba).
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Petitioners counsel also stated that they would be willing to enter into a writing in which they
would accept a representation from Finck that, on a request by request basis, it had no other
responsive information or documents (with the exception of the amount and percentage of
alleged Cuban Tobacco that it uses in its HAVANA BLEND cigars, information that Finck
obviously knows), on the condition that Finck would not later seek to introduce additional
information or documents on those matters. Id.
14. In response to Fincks counsels concerns regarding possible confidential businessinformation, Petitioners counsel also indicated their willingness to accept the Boards Standard
Protective Order, subject to review for possible minor modifications, and Fincks counsel stated
that he would send a proposed protective order for review. Petitioners agreement, as well as the
fact that the Boards Standard Protective Order is automatically in place, eliminates Fincks
objections, identified below, to disclosure of claimed confidential business information.
Petitioners never received a proposed protective order, and Finck never invoked the Standard
Protective Order. Id.
15. Counsel for Finck represented to Petitioners counsel that he would speak with hisclient and respond within a few days regarding additional information or representations that no
other information existed, and the parties discussed a 30-day extension of discovery and trial
dates to allow for Fincks compliance. Id.
16. Having heard nothing from Fincks counsel, on April 21, 2010, Petitionersadvised Finck by telephone that Petitioners would file a consent motion requesting extension of
all pending dates by 30 days (extending the close of discovery from June 12, 2010 to July 12,
2010), and Finck agreed. Reich Decl. 11. Petitioners filed the consent motion on April 21,
2010, and the Board granted the motion that same day. [D.E. 5, 6]
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17. Other than agreeing to the 30-day extension, to date, almost two months after theApril 14 conference call, Finck has not provided any response of any kind to any of the issues
raised during the call, including no privilege log, proposed protective order, documents,
interrogatory responses, or representations that there are no additional information or documents
concerning any of the disputed discovery, or requests for additional time to respond.
18. Having still heard nothing, despite Fincks representation on April 14 that itwould follow up with Petitioners within a few days to let them know whether it intended to
produce additional information or represent that no other information existed, on May 6, counsel
for Petitioners left a voice message for Fincks counsel Jeff Morgan asking him to contact
Petitioners counsel regarding the issues raised by Petitioners during the April 14, 2010 call.
Reich Decl. 12. Counsel for Finck did not return that call. Id. On the evening of May 6, 2010,
counsel for Petitioners sent Fincks counsel an email stating that more than three weeks had
passed since the April 14, 2010 call, and that Petitioners had not received any response from
Finck regarding the issues raised during that call. Reich Decl. 13 & Exh. G. In that email,
Petitioners asked Finck to provide Petitioners with any additional documents and interrogatory
responses, or any representations that there is no additional information in response to particular
requests, no later than May 14 30 days after the April 14 phone call and 49 days after the
agreed deadline of March 26 for Finck to respond to Petitioners discovery requests. Id.
Petitioners also informed Finck that if they did not receive the materials by May 14, they would
proceed accordingly, including filing a motion to compel the undisclosed information and
documents. Id.
19. Still having heard nothing, counsel for Petitioners called Mr. Morgan on June 4, just before noon local time, and left a voice mail for him, advising that in light of the non-
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response, Petitioners had no choice but to move to compel the following week, requesting that
Mr. Morgan advise whether Finck intended to contest the Petition, and requesting that Mr.
Morgan call him. There has been no response to that June 4 message. Reich Decl. 16.
20. As of the date of this filing, June 9, 2010, Petitioners have not received anyresponse to the April 14 conference, May 6 letter, or June 4 phone call, nor have they received
any additional documents or interrogatory responses. Reich Decl. 14. Because Finck has
egregiously failed to comply with its discovery obligations, despite the extensive efforts of
Petitioners outlined above, and particularly given Fincks refusal to represent that it has no
further information or documents and things (and it obviously does), Petitioners are left with no
alternative but to bring this motion to compel.
ARGUMENT
I. The Board Should Compel Responses to Petitioners Interrogatories and Document
Requests
21. In Interrogatory No. 8, Petitioners requested that Finck state with particularitywhat it meant by the terms Cuban seed or Cuban seed tobacco as used in its USPTO
application, specifically whether it is referring to tobacco grown in Cuba; outside Cuba from
tobacco seeds that themselves came from Cuba; or tobacco that was grown outside Cuba from
tobacco seeds that are, or are claimed to be, descendants of seeds that previously came from
Cuba. Fincks entire response to Interrogatory 8 was:
Registrant uses pre-embargo tobacco grown in Cuba in its HAVANA BLEND
cigars. Registrant also uses tobacco grown in countries outside of Cuba, including
Honduras and Nicaragua, which is referred to by some as Cuban seed tobaccobecause it is either grown from seeds from Cuba or seeds that are descendants of
seeds that previously came from Cuba.
Reich Decl. Exh. D.
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22. Interrogatories 12-15, 20, and 28 seek specific additional information regardingCuban seed tobacco grown outside of Cuba (as claimed by Finck in Response to Interrogatory 8),
including: the persons with information concerning any Cuban seed tobacco grown outside
Cuba used in its HAVANA BLEND cigars; where the tobacco is grown; how, where, when, and
from whom the tobacco and the Cuban seeds are obtained; the persons who obtain and/or
obtained the tobacco on behalf of Finck; the varietal of the tobacco; information concerning the
country of original of the actual tobacco seeds used; information concerning the claimed Cuban
origin of the seeds; the organoleptic (sensory) qualities or characteristics of the Cuban seed
tobacco; the manner of production, harvest, and growth of such tobacco; and the amount of
Cuban seed tobacco grown outside Cuba used in its HAVANA BLEND cigars.
23. Fincks entire response to all six of these Interrogatories is See Response toInterrogatory 8. Reich Dec. Exh. D. Yet, as is plain from the Interrogatory 8 Response quoted
above, nothing in that response even remotely addresses any of the specific inquiries in these six
Interrogatories, and the responses to these six Interrogatories are wholly non-responsive,
incomplete and improper, by any measure. Under the Boards decision inAnncas, and in light of
Fincks representation to the USPTO to overcome the refusal to register that its cigars are made
from Cuban seed tobacco, and its claim in Interrogatory 8, the information sought in these
Interrogatories is plainly relevant. Further, it is necessary to enable Petitioners experts to
properly prepare their Reports concerning Fincks Cuban seed tobacco claim. See Anncas, 88
USPQ2d at 1792-93. Particularly given that Finck refuses to represent that it has no additional
information in response to these six Interrogatories (and such a claim would be highly
implausible, if not outright impossible, unless Finck in fact does not use tobacco that it claims is
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Cuban seed tobacco, which would raise separate issues), the motion to compel should be
granted as to these six Interrogatories.
24. Document Requests 5-8, 13-15, 17, 20, and 35-36 seek documents and thingsconcerning the Cuban seeds and Cuban seed tobacco that Finck represented to the USPTO
its HAVANA BLEND cigars are made from, including Fincks amendment to its identification
of goods from cigars to cigars made from Cuban seed tobacco; documents referring to
Cuban seed or Cuban seed tobacco that were reviewed or prepared by Finck prior to its
representation to the USPTO; what Finck meant by the terms Cuban seed or Cuban seed
tobacco; use of the term Cuban seed tobacco in relation to any of Fincks products or in the
cigar industry; any investigation, study or analysis conducted by Finck prior its representation to
the USPTO to verify that its HAVANA BLEND cigars are made from Cuban seed tobacco;
the characteristics, varietal, and origin of any tobacco used in HAVANA BLEND cigars,
including whether any of that tobacco is Cuban seed tobacco; any product of Cuban origin
used in HAVANA BLEND cigars; any alleged connection between HAVANA BLEND cigars
and Cuba or Havana, Cuba; documents concerning the actual seeds used to grow any tobacco
claimed to be from Cuban seed, including the country of origin of the seeds; how, where in
Cuba and when such seeds were grown, and how and where such seeds are obtained; when, how,
where, and from whom the Cuban seed tobacco was and/or is obtained; and samples of the
Cuban seeds and Cuban seed tobacco. For most of these 11 Document Requests, Finck
claimed either that it has no responsive documents or things, or identified the two photos of the
wrapper labeled Product of Cuba (with respect to Document Request 5, Finck identified 16
non-responsive pages from the Application File; with respect to Document Request 13, Finck
refers to its response to Interrogatory 23 which itself is non-responsive; with respect to
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Document Request 36, requesting samples of the Cuban seed tobacco used in its HAVANA
BLEND cigars, Finck makes the frivolous objections of burdensomeness, lack of temporal
limitation, and relevance).2
But it is extremely implausible, if not impossible, that Finck has no
invoices, shipping documents, or other related documents for purchases it makes of tobacco
grown outside Cuba that Finck represented to the USPTO is Cuban seed tobacco. Likewise, it
is impossible that Finck uses tobacco that it claims is Cuban seed tobacco, both allegedly
grown in Cuba, and grown outside Cuba, and yet has no such tobacco in its possession, custody
or control, as requested in Document Requests 36 and 37. Particularly in light of Fincks refusal
to represent that it has no additional documents or things (and obviously it must), the Board
should compel Finck to produce documents and things responsive to these document requests.
25. Petitioners further note that Fincks representation to the Board that its cigars aremade from Cuban seed tobacco, and its sworn statement in response to Interrogatory No. 8 that
this tobacco includes Cuban seed tobacco grown outside of Cuba either grown from seeds
from Cuba or seeds that are descendants of seeds that previously came from Cuba necessarily
must be based either on documents or on information provided to Finck (or on both documents
and oral information), or else Finck just made up the claim to obtain a registration. Clearly, and
particularly in light ofAnncas, Petitioners are entitled to whatever information Finck has on this
claim (and if it in fact has none, then that fact will also be highly material).
2 Document Requests 5-8 ask Finck to provide certain documents concerning Cuban seed tobacco,
including documents reviewed by Finck prior to responding to the USPTO, and any verification by Finckprior to its representation to the USPTO that its HAVANA BLEND cigars are made from Cuban seed
tobacco. Other than identifying 16 non-responsive pages from the publicly available USPTO
Application File in response to Document Request 5, Finck claimed in its Response that it has no
documents responsive to these requests, but has refused to so represent following the conference call.
Given that fact, and the implausibility of no responsive documents, Petitioners are entitled to an order
compelling production of any such responsive documents. Petitioners intend to hold Finck to that
representation and to preclude Finck from introducing any such documents later in this proceeding.
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26. Interrogatories 10-11, 17-20, 22-23, 27, 30-32, and Document Requests 16, 18,21-28, 37-38 seek information concerning the claim that Finck possesses and uses alleged Cuban
Tobacco from 1959 in its HAVANA BLEND cigars, including information about the source and
type of that tobacco, its storage over the past 50 years, and the amount and percentage of alleged
Cuban Tobacco that is used in HAVANA BLEND cigars, including sufficient information for
Petitioners to independently test the veracity of such claims, and samples of said tobacco and
cigars. With the exception of an extremely vague, incomplete and inadequate response to
Interrogatory 10, generally repeated in response to Interrogatory 11, Finck has failed to produce
any of the requested information, and has refused to represent that it does not have any such
information (which representation would obviously be false). Indeed, Finck does not deny that it
has documents or information responsive to many of the requests. Fincks objection to several of
the requests on the ground they seek disclosure of confidential business information
(Interrogatory Responses 19, 22, 33 and Document Responses 23-26) is no excuse, as Petitioners
stated their willingness to enter into a Protective Order, the Boards Standard Protective Order is
automatically in place, and Finck has acknowledged that a suitable Protective Order would
obviate this objection. Reich 15, Exhs. D at 2, E at 2.
27. Petitioners are clearly entitled to test through discovery Fincks claim that itsHAVANA BLEND cigars use tobacco grown in Cuba over 50 years ago, and how much tobacco
purportedly from Cuba it uses in its cigars, for several reasons, each of which is sufficient by
itself. Petitioners are entitled to be extremely skeptical of this highly unlikely claim of use of
actual 50-year old Cuban origin tobacco, particularly in light of the claim that this single source
has been used to supply cigars by Finck since 1993 (and, before that, by its predecessor), and to
require Finck to produce whatever evidence it has to support this suspect claim. Notably, Finck
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failed to claim before the USPTO that it uses tobacco from Cuba, instead merely claiming that it
used Cuban seed tobacco, which is commonly used to refer to tobacco grown outside of Cuba,
and claimed to be grown from seeds descended from seeds from Cuba. See Anncas, 88 USPQ2d
at 1792-93. Indeed, it makes no sense for Finck to have responded to the USPTOs section
2(e)(3) refusal by claiming its cigars are made from Cuban seed tobacco and not tobacco from
Cuba, if that is indeed the case. The unsubstantiated assertion in response to Interrogatory 23
that pre-embargo Cuban tobacco was grown in or about 1959 is plainly incomplete, and Finck
should be compelled to produce all information, including documents in support of this highly
suspect claim. Indeed, the otherwise inexplicable refusal to produce or to represent that it has
information or documents heightens the likelihood that the Cuban Tobacco claim is bogus.
28. Second, even if Finck can establish that it does use some tobacco from Cuba from1959, Petitioners are entitled to test how much alleged Cuban Tobacco it uses in its cigars,
including whether the amount might be considered sufficient to constitute the main component
or ingredient of the cigars. See TMEP 1210.03 (suggesting a product might be found to
originate from a place ifthe main component or ingredient is made from that place); see, e.g.,
Anncas, 88 USPQ2d at 1791 (a product might be found to originate from a place where the
main component or ingredient was made in that place) (citing In re Joint-Stock Co. Baik, 80
USPQ2d 1305 (TTAB 2006)). Obviously, and indisputably, Finck knows how much alleged
Cuban Tobacco it uses in its cigars, both by amount and percentage, and it simply refuses to
produce that information. See Reich Decl. Exhs. D, E (responses to Interrogatory 19 and
Document Request 23). Its assertion in response to Interrogatory 11 that it has no knowledge of
how much tobacco it purchased is not credible, indeed it is absurd, and notably, Finck refuses to
represent that it does not have any additional information. Finck knows how much alleged
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Cuban Tobacco it has now, it knows how much it uses, and it can certainly estimate the number
of bales it purchased and the approximate quantity it purchased, even if not an exact figure to the
kilogram. Further, Petitioners are clearly entitled to the information that would enable them to
independently verify this figure, whether specifically or generally, which is a simple function of
knowing the weight of the alleged Cuban Tobacco purchased, the current weight of the
remaining alleged Cuban Tobacco, the number of HAVANA BLEND cigars produced, and the
weight of an individual cigar. As noted, Petitioners offered to forego any of this information
(other than evidence that the tobacco is in fact from Cuba), if Petitioners represented that the
amount of alleged Cuban Tobacco is less than 2% of each cigar.
3
Finck has refused to do so, or
to provide any information about the amount of alleged Cuban Tobacco used in its HAVANA
BLEND cigars, although it obviously has this information. For example, Fincks response to
Interrogatory 18 claims that it does not maintain information in the normal course of business
about the weight in grams of its HAVANA BLEND cigars. Such claim, even if true, does not
excuse Fincks failure to provide that information, which is clearly in its possession, custody or
control, and easily discernible, at least with respect to currently existing cigars. Interrogatories
11, 18-19, 30, 32 and Document Requests 18, 21-23, 25-27 seek this basic information, which is
obviously and indisputably in Fincks possession, whether in documents or otherwise, but which
Finck has refused to produce.4
3 For example, using a typical average of 4 grams for a medium sized cigar, if Finck produced a million
HAVANA BLEND cigars a year since 1993 when it purchased the HAVANA BLEND brand and thealleged Cuban Tobacco, then it consumed 68,000 metric tons of tobacco since then, assuming no waste.
If Finck purchased two metric tons of alleged Cuban Tobacco in 1993, and has one metric ton left today,
then the percentage of alleged Cuban Tobacco in its HAVANA BLEND cigars has been, on average 1.5%
(1/68 of the cigar).
4 In response to Interrogatory 30 and Document Request 26, requesting sales volume information since
Finck began using the mark, Finck stated that it will provide estimated annual sales volume of cigars
bearing the HAVANA BLEND mark for the last five years upon entry of a suitable protective order. As
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29. Third, as noted, and despite Fincks refusal to produce this information indiscovery, Finck repeatedly emphasizes in its advertising that it has limited quantities of alleged
Cuban Tobacco, and that it only uses a little amount of alleged Cuban Tobacco in its HAVANA
BLEND cigars, but that it uses enough in these cigars to give them that unique Cuban flavor.
Seepara. 6,supra; Reich Decl. 15, Ex. H. Obviously, then, Finck has this information. That
Finck exploits this information to sell its deceptively marked product, but then refuses to produce
the information in discovery is inexcusable, and highly improper. Petitioners are clearly entitled
to test these claims, including how much alleged Cuban Tobacco Finck has and how much it
uses, and to allow Petitioners experts to consider Fincks claims about the effect of such
tobacco.
30. Document Requests 1, 3, 11, and 34 seek documents concerning Fincks adoptionor selection of the mark HAVANA BLEND; the design, or development and creation of any
design, lettering, text, trade dress, or packing, used or considered for use in connection with the
mark; marketing, promotion and advertisement of HAVANA BLEND cigars; and samples of the
packaging or shipping materials, trade dress, text, labels, cigar bands, and boxes or containers for
products packaged using the HAVANA BLEND mark. Petitioners are entitled to the requested
material as the Board has repeatedly found that promoting a false goods-place association is
strong evidence that the public itself makes the same association, and that such association is
material. See, e.g., Corporacio Habanos, S.A. v. Guantanamera Cigars Co., 86 USPQ2d 1473,
1479 (TTAB 2008) (Promoting [a] false goods-place association [with Cuba] suggests that
applicant intended consumers of its goods to make the same association of the goods with
noted, Finck never proferred a Protective Order, although it stated it would (and although the Boards
Standard Protective Order is automatically in place) and has never produced the sales information. In any
event, five years of sales information would be inadequate to test the veracity of any usage of alleged
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Cuba.); In re Jacks Hi-Grade Foods, Inc., 226 USPQ 1028, 1030 (TTAB 1985)
(NEOPOLITAN; applicants labels reinforce the Italian connection by virtue of the product is
[sic] being described as Italian sausage as well as by a depiction of a simulated Italian flag)
(emphasis added); In re Broyhill Furniture Indus., Inc., 60 USPQ2d 1511, 1517 (TTAB 2001)
(TOSCANA; Applicants ... catalogs readily foster a goods/place association between its
furniture and Tuscany by referring to Europes Mediterranean coast and European
sensibility); Scotch Whiskey Assn v. Consolidated Distilled Prods., Inc., 210 U.S.P.Q. 639,
642 (N.D. Ill. 1981) (LOCH-A-MOOR; geographic deceptiveness reinforced by the label
[which] displays a castle and refers to a Scottish island). Here, Petitioners have some
advertising samples showing that Finck promotes a false goods/place association with Cuba in its
promotional materials and advertising. Reich Decl. Exh. H. Finck cannot pick and choose
which advertising, packaging, or promotions, it produces. Fincks production of one catalog that
included 3 pages relating to HAVANA BLEND cigars, 1 page advertising HAVANA BLEND
cigars that appears to be from a catalog distributed by Wally Franck Ltd., two pages of a printout
of a page from the Finck Cigar Company web site listing Havana Blend cigars, a single
HAVANA BLEND cigar box and some HAVANA BLEND cigar labels is inadequate. Absent a
single representation that there are no other advertisement, promotion, or packaging materials, or
that whatever there is is identical to those six pages and box, Fincks production is incomplete.
31. Document Request 10 seeks documents sufficient to show the channels of tradethrough which Finck has sold HAVANA BLEND cigars, including documents sufficient to
identify the persons, including retail entities, to which those cigars are distributed, or through
which those cigars are sold. Petitioners are entitled to this information which relates to one of
Cuban Tobacco that Finck might claim, and there is no reason it should not be compelled to produce the
sales volume information that it has.
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the factors set forth inIn re E.I. DuPont DeNemours & Co., 476 F.2d 1357, 1361 (CCPA 1973)
(similarity of trade channels is a factor to be considered in testing for likelihood of confusion),
and is therefore relevant to Petitioners 2(d) claim.
32. Document Request 12 seeks documents concerning the manufacture of HAVANABLEND cigars, sufficient to identify all former or current manufacturers and places of
manufacture of the tobacco of any such cigars. Fincks response that it has no documents
responsive to this request is absurd. It is simply not possible that Finck has no documents
concerning the manufacture of its own cigars and the tobacco used therein.
33.
Document Request 43 seeks documents concerning Registrants denial of
allegations in Petitioners Petition to Cancel. Fincks objection that the request for these
documents is overly broad, unduly burdensome, and not properly limited in temporal scope is
baseless. Petitioners request is directly relevant to the claims in this action. The notion that a
party can deny the factual allegations in a complaint and then refuse to produce the supporting
documents finds no support in the law. Finck fails to explain how document production would
be unduly burdensome. Certainly, asking Finck to produce more than some catalog pages, a
printout of an internet web page, a cigar box, some labels, publicly available documents filed
with the USPTO, and two photos of a wrapper is not overly burdensome.
34. To the extent Finck fails to provide the information and materials sought in theabove-listed Interrogatories and Document Requests and attempts to introduce any such
documents or other information in this proceeding, at trial, on summary judgment, or otherwise,
Petitioners intend to ask that the Board estop and preclude Finck from introducing any such
information sought in these discovery requests. See TBMP 411.04, 527.01(e). See, e.g.,
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ConAgra Inc. v. Saavedra, 4 USPQ2d 1245, 1247 n.6 (TTAB 1987) (exhibits excluded from
consideration because encompassed by discovery requests and not produced during discovery).
35. Because Petitioners have been, and will continue to be, prejudiced by Fincksfailure to adequately respond to its discovery requests, which cannot be excused by Fincks
objections, Petitioners respectfully request that Finck be compelled to produce the required
discovery. As a result of Fincks failure to provide complete and adequate responses to their
discovery requests, Petitioners have been unable to prepare their expert disclosure or to prepare
for the depositions of Henry W. Finck, Sr. and Henry W. Finck, Jr., identified by Finck,
respectively, as its President and Vice President Petitioners are entitled to the requested
information in order to allow their expert to prepare to testify regarding whether Fincks cigars
made from Cuban seed tobacco should be deemed to originate from Havana, and in order to
prepare for the depositions of Fincks principals. See, e.g.,Anncas, 88 USPQ2d at 1789, 1792-
93.
II. The Board Should Suspend Proceedings and Reset Deadlines After Disposition of
the Motion
36. Pursuant to TBMP 510.03(a), 523.01 and 37 CFR 2.120(e)(2), [w]hen a party files a motion for an order to compelthe case will be suspended by the Board with
respect to all matters not germane to the motion. 37 CFR 2.120(e)(2). Petitioners also request
that the Board issue an order resetting the deadlines for discovery and trial periods after
disposition of the motion. See 37 CFR 2.120(a)(2) (The discovery period may be
extendedupon motion granted by the Board, or by order of the Board.); 37 CFR 2.121(a)
(The deadlines for pretrial disclosures and the testimony periods may be rescheduled
bymotion granted by the Board, or by order of the Board.); see, e.g.,Jain v. Ramparts Inc.,
49 USPQ2d 1429 (TTAB 1998) (proceedings deemed suspended as of the filing of the motion
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and relevant deadlines reset). Because of the persistent delays occasioned by Fincks refusal
properly to respond to Petitioners interrogatories and document requests, discovery cannot fairly
be completed within the period established by the current discovery schedule, which provides for
completion by July 12, 2010. In particular, Petitioners note that they have been unable to
prepare their expert disclosure as a result of Fincks failure to provide complete and adequate
responses to their discovery requests, or to prepare for depositions of individuals identified by
Finck. Petitioners therefore request that the discovery schedule be extended so that the discovery
period closes 120 days after the decision of this motion, with the trial date schedule extended
accordingly.
CONCLUSION
For the reasons stated herein, Petitioners Motion to Compel and to Suspend Proceedings
should be granted.
Dated: New York, New YorkJune 9, 2010
Respectfully submitted,
RABINOWITZ, BOUDIN, STANDARD,KRINSKY & LIEBERMAN, P.C.
By: /s/DAVID B. GOLDSTEIN
DANIEL S. REICH
111 Broadway, Suite 1102New York, New York 10006
(212) 254-1111
Attorneys for Petitioners Corporacion Habanos,
S.A. and Empresa Cubana del Tabaco
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CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing MOTION TO
COMPEL DISCOVERY AND TO SUSPEND PROCEEDINGS was sent by email and was
served on Registrant by mailing via U.S. first-class mail, postage prepaid, said copy on June 9,
2010, to:
Jeff MorganNovak Druce + Quigg LLP
1000 Louisiana Street, 53rd Floor
Houston, TX 77002
(713) [email protected]
Attorneys for Registrant Finck Cigar Company
/s/
Daniel S. Reich
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IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
________________________________________________
CORPORACION HABANOS, S.A., and EMPRESA )CUBANA DEL TABACO, d.b.a. CUBATABACO, )
)
Petitioners, ) Cancellation No. 92051542) Registration No. 2,890,975
v. )
) DECLARATION OFFINCK CIGAR COMPANY, ) DANIEL S. REICH
)
Registrant. ))
DANIEL S. REICH, an attorney duly admitted to the practice of law, declares
under penalty of perjury that the following is true and correct:
1. I am an attorney in the firm of Rabinowitz, Boudin, Standard, Krinsky &Lieberman, P.C., counsel for petitioners Corporacion Habanos, S.A. and Empresa Cubana Del
Tabaco, d.b.a. Cubatabaco (Petitioners), and a member of the bar of the State of New York.
2. I make this declaration in connection with Petitioners Motion To CompelDiscovery and To Suspend Proceedings dated June 9, 2010, filed herewith.
3. Attached hereto as Exhibit A is a true and correct copy of Petitioners FirstSet of Interrogatories to Registrant, served on February 9, 2010 (hereinafter Interrogatories).
4. Attached hereto as Exhibit B is a true and correct copy of Petitioners FirstRequest for Production of Documents and Things, served on February 9, 2010 (hereinafter
Document Requests).
5. On March 12, 2010, during a telephone conversation with Jeff Morgan, Iagreed to extend Fincks time to respond until March 26, 2010. Attached hereto as Exhibit C is a
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true and correct copy of a March 12, 2010 email to me from Jeff Morgan, counsel to Registrant
Finck Cigar Company (Finck), confirming our agreement to extend Fincks time until March
26, 2010 to serve responses to Petitioners Interrogatories and Document Requests.
6. Attached hereto as Exhibit D is a true and correct copy of RegistrantsObjections and Responses to Petitioners First Set of Interrogatories to Registrant, dated March
26, 2010.
7. Attached hereto as Exhibit E is a true and correct copy of RegistrantsObjections and Responses to Petitioners First Request for Production of Documents and
Things, dated March 26, 2010.
8. Petitioners, through their counsel, have made a good faith effort throughconference and correspondence with Finck, through its counsel, to resolve the issues presented in
this motion, but the parties have not been able to reach agreement.
9. On April 12, 2010, during a telephone conversation with Jeff Morgan, Iproposed that we hold a telephonic discovery conference, and we agreed to hold the conference
on April 14, 2010. Attached hereto as Exhibit F is a true and correct copy of an email dated
April 12, 2010, from me to Mr. Morgan, confirming the scheduling of the discovery conference
for April 14, 2010.
10. On April 14, 2010, a telephonic discovery conference was held betweenJeff Morgan, on behalf of Finck, and David B. Goldstein and me, on behalf of Petitioners.
During that call, Mr. Goldstein and I went over each individual interrogatory response and
document response and production in Fincks March 26, 2010 production that we contended
were inadequate and incomplete, including explaining why the responses were inadequate and
incomplete, as well as relevant to the cancellation proceeding, and requested that the inadequate
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production be remedied. During the conference, counsel for Finck did not represent that Finck
had provided all the documents or other information in Fincks possession, custody, or control
responsive to the discovery requests. We stated that with respect to Fincks objections to the
discovery requests based on the attorney-client privilege and/or the attorney work product
doctrine, Petitioners are not seeking information protected from disclosure on these grounds so
long as Finck produces a log of the documents withheld on these grounds. To date, Finck has
not produced a privilege log. We stated that in response to Fincks objection that some of these
discovery requests seek information that is not reasonably limited to a relevant time period,
Petitioners would be willing to consider a proposal by Finck to narrow the temporal scope of the
requests. Finck never sent such a proposal. We also stated that we would be willing to accept a
representation by Finck that the amount of alleged Cuban Tobacco used in each HAVANA
BLEND cigar comprises no more than two percent of the cigars tobacco, in lieu of documents
and other information supporting that claim (but subject to production of documents and other
information supporting the claim that the tobacco in fact came from Cuba). We also stated that
we would be willing to enter into a writing in which Petitioners would accept a representation
from Finck that, on a request by request basis, it had no other responsive information or
documents (with the exception of the amount and percentage of alleged Cuban Tobacco that it
uses in its HAVANA BLEND cigars, information that Finck obviously knows), on the condition
that Finck would not later seek to introduce additional information or documents on those
matters. We said that we would review any representations that Finck proposed to make in
response to these offers, and let Fincks counsel know if they were adequate. To date, we have
not received any proposed representations from Finck. We also indicated our willingness to sign
the Boards standard protective order, subject to our review, and Mr. Morgan said he would send
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a proposed protective order for review. We never received a proposed protective order. Also
during that call, we discussed with Mr. Morgan a 30-day extension of discovery. During the call,
Mr. Morgan stated that he would follow up with Mr. Goldstein and me within a few days
regarding additional information or representations that no other information existed. To date,
we have received no communications from Mr. Morgan regarding any of the substantive issues
raised during the call, nor have we received a privilege log, proposed protective order from Mr.
Morgan, documents, interrogatory responses, or representations.
11. Although Mr. Morgan did not follow up as he said he would, I agreed withMr. Morgan during a telephone call that I would file a consent motion proposing extension of all
dates by 30 days. I filed a consent motion to that effect on April 21, 2010.
12. On May 6, 2010, I left a voice message for Mr. Morgan in order to findout whether Finck was intending to respond to the issues raised by Mr. Goldstein and me during
the April 14, 2010 call regarding Fincks incomplete disclosures in response to Petitioners
Interrogatories and Document Requests. Mr. Morgan did not return that call.
13. Attached hereto as Exhibit G is a true and correct copy of an email datedMay 6, 2010, from me to Mr. Morgan, stating that more than three weeks had passed since the
April 14, 2010 call and that Petitioners had not received any response from Finck regarding the
issues raised during that call, asking Finck to provide Petitioners with any additional documents
and interrogatory responses, or any representations that there is no additional information in
response to particular requests, no later than May 14, and informing Finck that if Petitioners did
not receive the materials by May 14, they would proceed accordingly, including filing a motion
to compel the undisclosed information and documents.
14. As of this date, counsel for Petitioners have not received a response to our
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EXHIBIT A
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EXHIBIT B
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EXHIBIT C
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Daniel Reich
From: Jeff Morgan [[email protected]]
Sent: Friday, March 12, 2010 2:42 PM
To: Daniel Reich
Subject: Discovery Responses-- Corporacion Habanos, S.A. v. Finck Cigar Company (TTAB Cancellation No.
92051542)
Page 1 of 1
6/8/2010
Dear!Dan:!!!This!is!to!confirm!our!agreement!today!for!a!ten!(10)!!day!extension!of!time!until!March!26,!2010!to!serve!responses!to!the!outstanding!discovery!requests,!which!were!served!on!February!9,!2010!by!mail.!!!Thank!you!for!your!assistance!in!this!matter.!!!Best!regards,!!!Jeff!Morgan!!!!!!!
!!Jeffrey Morgan!Novak Druce + Quigg LLP!Wells Fargo Plaza!1000 Louisiana!Fifty Third Floor !Houston, TX 77002!!Phone: 713-571-3470!Fax: 713-456-2836!www.novakdruce.com!!Confidentiality Notice: This email and any attachments contain information from the law firm of NovakDruce + Quigg LLP, which may be confidential and/or privileged. The information is intended to be for theuse of the individual or entity named on this email. If you are not the intended recipient, be aware that anydisclosure, copying, distribution or use of the contents of this email is prohibited. If you receive this emailin error, please notify us by reply email immediately so that we can arrange for the retrieval of the original
documents at no cost to you. !!!!!
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EXHIBIT D
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EXHIBIT E
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EXHIBIT F
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Daniel Reich
From: Daniel Reich
Sent: Monday, April 12, 2010 3:23 PM
To: Jeff Morgan
Subject: Corporacion Habanos, S.A. v. Finck Cigar Company (TTAB Cancellation No. 92051542)
Page 1 of 1
6/8/2010
Dear Jeff,!!This is to confirm that we will hold a discovery conference by phone this Wednesday April 14 at 3 PMEST (2 PM CST) to discuss your responses to our First Set of Interrogatories and First Request forProduction of Documents and Things. Among the issues we intend to raise on the call are yourresponses regarding the amount and percentage of Cuban tobacco used in Havana Blend cigars andregarding use of Cuban seed tobacco in those cigars, including whether Fincks use of Cuban seedtobacco is limited to tobacco grown from Cuban seed from Cuba.!!Best regards,!!Dan Reich!!!Daniel S. Reich, Esq.Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C.111 Broadway, Eleventh FloorNew York, NY 10006Tel: 212-254-1111Fax: 212-674-4614 !!
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EXHIBIT G
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Daniel Reich
From: Daniel Reich
Sent: Thursday, May 06, 2010 8:01 PM
Subject: Corporacion Habanos, S.A. v. Finck Cigar Company (TTAB Cancellation No. 92051542)
Page 1 of 1
6/8/2010
Dear Jeff,
I left you a message earlier today and am following up by email as I have not heard back from you. Morethen three weeks have passed since our April 14 teleconference regarding discovery issues, and we havenot received any response from you regarding the issues raised during that call regarding your incompletedisclosures in response to Petitioners First Set of Interrogatories and First Request for Production ofDocuments and Things, although you advised you would get back to us within the next few daysregarding additional information or representations that no other information existed.
Under the circumstances, we insist that you provide us with any additional documents and interrogatoryresponses, or any representations that there is no additional information in response to particularrequests, no later than May 14, 30 days after our phone call and 49 days after the agreed deadline ofMarch 26 for you to respond to our discovery requests.
If we have not received the materials by that date, we will proceed accordingly, including filing a motion tocompel the undisclosed information and documents.
Best regards,
Daniel Reichfor Corporacion Habanos, S.A. and Empresa Cubana del Tabaco d.b.a. Cubatabaco
Daniel S. Reich, Esq.Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C.111 Broadway, Eleventh FloorNew York, NY 10006Tel: 212-254-1111 ext. 104
Fax: 212-674-4614
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EXHIBIT H
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