Yesterday the D.C. Circuit, in a 2-1 decision, ruled that the Cuban government-owned company Cubaexport could not renew its HAVANA CLUB trademark for rum. In Empresa Cubano Exportadora de Alimentos y Productos Varios v. United States Dep't of Treasury, No. 09-5196 (D.C. Cir. Mar. 29, 2011), the majority held that a provision in a 1998 appropriations act which prohibited transactions or payments to the PTO under 31 CFR § 515.527 (which at the time referred to registrations and renewals as "transactions"), was not impermissibly retroactive as to Cubaexport. Noting that a "vested right" was required to invoke the presumption against retroactivity, the majority held that Cubaexport did not have a "vested right" in renewal because the Cuban trademark regulations at issue also contained an express reservation allowing them to be amended or modified at any time. The dissent argued that the Supreme Court's retroactivity jurisprudence makes clear that a statute that impairs an existing "substantive right" is impermissibly retroactive, and that the majority was reading "vested right" to mean something more than substantive rights, thus "driv[ing] a large hole in the presumption against retroactivity." The dissenting judge noted that Cubaexport had a substantive, existing right to renew its registration, notwithstanding the theoretical possibility that hypothetical future regulations could have eliminated that right.
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