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Florida Cigar Counterfeiter s Conviction is Affirmed

Altadis U.S.A. Inc., the world's largest manufacturer of premium cigars, has scored yet another victory in its ongoing efforts to prosecute those who engage in counterfeiting of the company's trademarks.
On December 17, 2008, The United States Court of Appeals for the Eleventh Circuit affirmed the conviction and sentencing of defendant Juan Penton. During a sting operation, Penton had sold an undercover Miami-Dade County police officer boxes of cigars containing an assortment of the registered trademarks owned by Altadis U.S.A.'s subsidiaries, Cuban Cigar Brands, N.V. ("CCB") and Max Rohr, Inc., and by General Cigar Co., as well as the words "Habana," "Habana Cuba," "Habanos SA," and "Hecho en Cuba." The boxes were sealed with fabricated Cuban seals and contained inside fake Cuban Government guarantees. "Habana" was also printed on each of the cigar bands. Penton was found guilty by a Miami jury of three counts of trafficking and attempting to traffic in counterfeit goods, namely, cigars sold under trademarks that were counterfeits of the registered trademarks of CCB, Max Rohr and General Cigar, and he was sentenced by the District Court to five year's probation with five months of home confinement, a $7,500 fine and a $300 special assessment.
On appeal, Penton moved for an acquittal on the grounds that the evidence showed that there were "parallel" marks in the United States and Cuba, that is, the Cuban government sells Cuban cigars in Cuba and other parts of the world under the same apparent trademark as non-Cuban cigars are sold in the U.S. by Altadis U.S.A. and General Cigar. Penton argued that his cigar boxes imitated the Cuban marks. As the Court noted, the problem for Penton was that such argument had already been rejected by the Court in U.S. v. Guerra, 293 F.3d 1279 (11th Cir. 2002). Penton attempted to suggest that the holding in the Guerra case is no longer good law because of the Helms-Burton Act. The Court rejected Penton's position.
Additionally, Penton argued that the government failed to prove that his use was likely "to cause confusion." The Court rejected Penton's argument, citing its prior decision in U.S. v. Torkington, 812 F.2d 1347 (11th Cir. 1987), in which the Court held that it is not necessary to show proof of confusion through the testimony of consumers or experts or the admission of surveys, and that it is a question for the jury to decide whether a direct purchaser or subsequent individual in a post-sale context might be confused, mistaken or deceived.

Source: Cigar Advisor