Trademark Court Gets Jeb's E-Mails on Bacardi

Dan Christensen, Miami Daily Business Review, first print 03-19-2003

Jeb bush's illegal push for Bacardi

Dozens of e-mails detailing a lobbying campaign by Florida Gov. Jeb Bush and his staff on behalf of Bacardi Ltd. have been filed with a U.S. trademark court as evidence of illegal "political pressure" by the president's brother.

Havana Club Holdings S.A., a joint venture between Cuba and France's Pernod Ricard, is using the governor's e-mail traffic to try to convince three administrative law judges at the U.S. Trademark Trial and Appeal Board to reconsider a Jan. 21 ruling that Bush's one-sided contacts with U.S. Patent and Trade Office officials did not break any law.

Federal rules prohibit ex parte communications on the merits of a case between interested parties and certain agency officials.

The governor's e-mails flowed while the world's biggest rum maker and its Miami-based executives poured tens of thousands of dollars into the political war chests of Bush and the Florida Republican Party -- more than $200,000 since 1998, the Miami Daily Business Review reported in October.

The e-mail correspondence, which reads like a how-to guide to turning up the heat on federal political appointees, shows that Bush and his staff pressured various federal agencies to favor Bacardi in its long-running fight over the U.S. rights to the Havana Club rum label.

The Trademark Trial and Appeal Board (TTAB) is part of the Patent and Trademark Office. Bacardi is asking the board to cancel the rights of Havana Club Holdings S.A., a joint Cuban-French venture, to the Havana Club name in the United States.

Among the officials lobbied by Gov. Bush and his staff were Patent and Trademark Office Director James E. Rogan, a political appointee of President Bush, and Deputy PTO Director Jon Dudas. Rogan and Dudas have the power to "select members of TTAB panels and [have] substantial influence over their work and careers," according to a recent court filing by Havana Club Holdings attorney Charles S. Sims of New York.

Lawyers for Havana Club first asked the TTAB to dismiss Bacardi's complaint in September after a story in The Washington Post disclosed that Gov. Bush wrote to Rogan in mid-June urging a swift and favorable ruling for Bacardi. The Post also reported that, two weeks earlier, Bacardi had contributed $50,000 to the Florida GOP.

Bush's office said last fall that there was no quid pro quo of favors for campaign cash involved in Bush's decision to write the letter. "The governor strongly supports the position of Bacardi in this dispute and he is helping a company that has extensive offices and employees in this state," spokeswoman Jill Bratina said.

LOBBYING RULED LEGAL

Despite Gov. Bush's statements in the letter to Rogan, the TTAB judges later ruled that Bush had not made an illegal attempt to influence the PTO director. "We view the letter as a complaint on behalf of a Florida-based business about delays in the cancellation process with a request for status information, rather than as an ex parte communication on the merits," the TTAB panel ruled in January.

The TTAB judges also were unconvinced by Havana Club Holdings' arguments that other ex parte contacts on Bacardi's behalf were apparent in the record. Havana Club Holdings, however, offered no proof of that in its original motion. "We remain unpersuaded by the record before us that such communications have occurred," according to the January order.

At that time, the governor's e-mails hadn't yet become public.

Seeking to beef up the record, Havana Club Holdings recently filed copies of more than 100 pages of e-mails about the pro-Bacardi lobbying campaign to and from the governor's office. An accompanying chronology cited 13 communications with the patent office and other federal agencies by Gov. Bush and his staff.

The first e-mail in the string is a Jan. 8, 2002, note to Gov. Bush from the president of Miami-based Bacardi-Martini USA, Jorge Rodriguez Marquez. The headline on the note is "Bacardi Needs Help."

In that e-mail and ones that followed, the now-retired Rodriguez Marquez stated that Bacardi had discussed its high-stakes trademark fight privately with officials in the State Department, Vice President Dick Cheney's office and with an aide to President Bush's chief political strategist, Karl Rove.

'WILL SEE WHAT I CAN DO'

Specifically, Rodriguez Marquez asked Gov. Bush to help persuade the trademark office to cancel the registration of the Havana Club brand by Havana Club Holdings. "We need your help," Rodriguez Marquez wrote.

"Jorge, I will see what I can do," Gov. Bush wrote back the next morning.

It was the first of 12 e-mails the governor wrote over the next three months to his staff, including his chief of staff, Kathleen Shanahan, or to Rodriguez Marquez about the matter.

The e-mails show representatives of the governor's office spoke and met in secret with various officials from the trademark office, including Deputy Director Dudas.

Havana Club Holdings contends that lobbying by Bush's office violated the U.S. Government in the Sunshine Act and "infected" the quasi-judicial proceedings now pending.

"Secret communications between interested parties and an administrative decision-maker are inconsistent with fundamental notions of fairness implicit in due process," said the motion for reconsideration of the Jan. 21 TTAB ruling filed by Havana Club Holdings attorney Sims, a partner at Proskauer Rose in New York City. "The trappings of fairness and the rule of law are not to be used as a charade for proceedings decided by political pressure applied through ex parte communications."

A Bacardi spokeswoman in Miami said in a statement that Havana Club Holdings' motion for reconsideration is a stalling tactic.

"The Pernod/Cuba partnership continues to fuel delays at the U.S. Patent and Trademark Office by filing futile objections in hopes of dragging the process out as long as possible," Patricia Neal said.

Bacardi was due to file a written response to Havana Club Holdings' Feb. 19 motion for reconsideration early last week, but it never happened.

The TTAB put the case on hold for a technical reason. On the afternoon of Saturday, March 8, a day the court would normally be closed, the TTAB faxed an order to counsel for both sides ordering them "not to file any papers" regarding the motion. Papers filed in violation of the order "will not be considered by the board and will be returned to the party which filed the paper," the order said.
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