RESTRICTED WORLD TRADE ORGANIZATION
ORGANISATION MONDIALE DU COMMERCE
ORGANIZACIÓN MUNDIAL DEL COMERCIOIP/C/W/139/Add.2
6 April 2000
(00-1397)
Council for Trade-Related Aspects
of Intellectual Property RightsOriginal:  English/
                 anglais/
                 inglés
COMMUNICATION FROM THE UNITED STATES
Addendum
By means of a communication from its Permanent Mission received on 21 March 2000, the
United States has supplemented the information provided earlier in response to the Cuban delegation's
request for information (see documents IP/C/W/139 and Add.1) with the regulations of the US
Treasury Department and judgement of the US Court of Appeals reproduced in the Annex.1
Conseil des aspects des droits de propriété
intellectuelle qui touchent au commerce
COMMUNICATION DES ÉTATS-UNIS
Addendum
Par communication de sa Mission permanente reçue le 21 mars 2000, les États-Unis ont
complémenté la documentation qu'ils avaient fournie auparavant en réponse à la demande de
renseignements de la délégation cubaine (voi r les documents IP/C/W/139 et Add.1), avec les
règlements du Département du Trésor des États-Unis et la décision de la Cour d'Appel des États-Unis
reproduits en annexe.1
Consejo de los Aspectos de los Derechos de PropiedadIntelectual relacionados con el Comercio
COMUNICACIÓN DE LOS ESTADOS UNIDOS
Addendum
Mediante una comunicación de su Misión Permanente recibida el 21 de marzo del 2000, los
Estados Unidos han complementado la información que ya habían facilitado en respuesta a la petición
de información formulada por la delegación de Cuba (véase los documentos IP/C/W/139 y Add.1),
con las reglamentaciones del Departamento de Tesoro y la decisión del Tribunal de Apelación de los
Estados Unidos reproducidas en el anexo.1
                                                     
1 In English only/En anglais seulement/En inglés solamente.IP/C/W/139/Add.2
Page 2
ANNEX
Federal Register: May 13, 1999 (Volume 64, Number 92)
Rules and Regulations Page 25808-25820
DEPARTMENT OF THE TREASURY
Office of Foreign Assets Control
31 CFR Part 515
Cuban Assets Control Regulations: Sales of Food and Agricultural Inputs; Remittances;
Educational, Religious, and Other Activities; Travel-Related Transactions; U.S. Intellectual
Property
AGENCY:  Office of Foreig n Assets Control, Treasury.
ACTION:  Final rule; amendments.
SUMMARY:  Pursuant to the Pr esident's announcement of January 5, 1999, the Treasury Department
is amending the Cuban Assets Control Regulations to modify certain provisions with respect to
remittances and travel-related transactions and to make other clarifying and conforming amendments
to the regulations.  The regulations also implemen t a statutory provision excluding from an existing
general license transactions involving certain intellectual property used in connection with a business
or assets that were confiscated.
EFFECTIVE DATE: May 10, 1999.FOR FURTHER INFORMATION CONTACT: Dennis  P. Wood, Chief, Compliance Programs
Division (tel.: 202/622-2490) ; Steven I. Pinter, Chief of Licen sing (tel.: 202/622-2480); Charles L.
Bishop, OFAC-Miami Sanctions Coordinator (tel.:  305/810-5140); or William B. Hoffman, Chief
Counsel (tel.: 202/622-2410); Office of Foreign Assets Control, Department of the Treasury,
Washington, DC 20220.
SUPPLEMENTARY INFORMATION:Electronic Availability:
This document is available as an electronic file on The Federal Bulletin Board  the day of
publication in the Federal Register.  By modem, dial 202/512-1387 and type "/GO FAC," or call
202/512-1530 for disk or paper copies. This file is available for downloading without charge in ASCII
and Adobe Acrobat R readable (*.PDF) formats. For Internet access, the address for use with the
World Wide Web (Home Page), Telnet, or FTP protocol is: fedbbs.access.gpo.gov.  The document is
also accessible for downloading in ASCII format without charge from Treasury's Electronic Library
("TEL") in the "Research Mall" of the FedWorld bulletin board. By modem, dial 703/321-3339, and
select self-expanding file "T11FR00.EXE" in TEL.  For Internet access, use one of the following
protocols: Telnet = fedwor ld.gov (192.239.93.3); World Wide Web (Home Page 25809]]Page) =
http://www.fedworld.gov; FTP = ftp.fedwor ld.gov (192.239.92.205).  Additional information
concerning the programs of the Office of Foreign Assets Control is available for downloading from
the Office's Internet Home Page: http://www.treas.gov/ofac, or in fax form through the Office's 24-
hour fax-on-demand service: call 202/622-0077 using a fax machine, fax modem, or (within the
United States) a touch-tone telephone.IP/C/W/139/Add.2
Page 3
Background
On January 5, 1999, President Clinton announced that the United States is taking additional
steps to expand the flow of humanitarian assistance to Cuba and strengthen independent civil societyin that country.  Among the initiatives the Pres ident announced were an expansion of remittances to
support Cuban families and organizations independent of the Cuban government; expansion of
people-to-people contact through two-way exchanges among academics, athletes, scientists, and
others and streamlining the approval process for their visits; and the sale of food and agricultural
commodities to independent nongovernmental entities.
The U.S. Treasury Department's Office of Fore ign Assets Control ("OFAC") is implementing
these steps through amendments to the Cuban Assets Control Regulations, 31 CFR Part 515 (the
"CACR"), and reorganizing the CA CR to place related provisions together.  In addition, OFAC is
implementing section 211 of Division A, Title II , of the Omnibus Consolidated and Emergency
Supplemental Appropriations Act, 1999 (Public La w 105-277 [H.R. 4328]), excluding from the scope
of the general license contained in §515.527 any tran saction or payment with respect to a mark, trade
name, or commercial name that is the same as or substantially similar to a mark, trade name, or
commercial name that was used in connection with a business or assets that were confiscated, unless
the original owner of the mark, trade name, or commercial name or the bona fide successor-in-interest
has expressly consented.
Remittances
In implementation of the President's policy statement, these amendments include a new
general license allowing any person subject to U.S. jurisdiction who is 18 years of age or older to
make remittances of up to $300 in any consecutive 3-month period to the household of any individualin Cuba or the authorized trade territory (defined in §515.322 of the CACR to mean all countries not
subject to economic sanctions administered by OFAC pursuant to chapter V, 31 CFR) who is not a
senior government or senior comm unist party official of Cuba.  Persons subject to U.S. jurisdiction
may also be specifically licensed to send remittances to organizations independent of the Cuban
government.  Descriptions of specific amendments concerning remittances follow.
Old §515.521 previously contained a general license authorizing remittances, including those
from blocked accounts in the name of the payee or members of his or her household, not to exceed
$100 per calendar month to Cuban nationals in the authorized trade territory. Old §515.556 stated that
remittances from blocked accounts sent to Cuban nationals located in the authorized trade territory
pursuant to §515.521 could be increased on a case-by-case basis upon a showing that such increase
was reasonable and necessary.  These sections have been largely superseded by the new policycontained in new §515.570 on remittances to Cuban nationals.  The previous authorization for limited
remittances from blocked accounts in §515.521, and the reference to it in §515.566, however, are now
incorporated in §515.570(a)(2), (b)(3) and (d)(3), respectively.
The general license contained in old §515.563 permitting certain remittances to close relatives
in Cuba is also incorporated in new §515.570.  In addition to the family remittance and the two
existing $500 emigration remittances, a new individual-to-household remittance, not to exceed $300
per quarter, is now authorized by general license to any household of a Cuban national in Cuba or the
authorized trade territory whose household does not include a senior Cuban government or communist
party official.  A remitter may not send both a family remittance and an individual-to-household
remittance to the same household within the same 3-month period.  New §515.570 also provides for
specific licenses authorizing remittances to independent nongovernmental entities in Cuba.IP/C/W/139/Add.2
Page 4
Travel-Related Transactions
Travel-related transactions are now generally authorized in connection with specified news
support, professional research, and athletic activities, and are authorized in connection with broad
classes of educational and religious activities in Cuba conducted under the auspices of U.S. academicinstitutions or U.S. religious organizations that  receive long-term specific licenses.  In addition,
specific licenses may be issued for travel-related transactions in connection with cultural activities,
humanitarian projects, and certain trade transactions found consistent with relevant export licensing
policies.  Authorization of travel-related transact ions related to exportations, however, does not extend
to the authorization of the exportation itself.  Descriptions of specific amendments concerning travel-
related transactions follow.
Section 515.420 is added to set forth OFAC's in terpretation of fully-hosted travel involving
Cuba, previously contained in old §515.560(g).
Old §515.518 contained a general license permitting debits to blocked accounts held in the
name of Cuban nationals for their living, traveling, and similar personal expenses in the United States,not to exceed $250 per calendar month.  This provision has now been consolidated with old §515.564
(authorizing the same transactions on behalf of Cuban nationals in the United States from non-
blocked sources) in new §515.571.
Section 515.533, authorizing transactions incident to exportations of goods directly from the
United States to Cuba that are authorized by the Department of Commerce, is amended to add a
statement that specific licenses may be issued au thorizing travel-related transactions for purposes
related to the marketing, sales negotiation, accompanied delivery, or servicing of exports.
Exportations themselves must be specifically licensed by the Department of Commerce.  Section
511.533 is also amended to state that financing for exportations to Cuba of food and agricultural
commodities authorized by the Department of Commerce is not authorized.
The authorization in old §515.540 for the importation of Cuban-origin goods (other than
alcohol and tobacco) contained in personal baggage carried by foreign nationals entering the United
States has been moved to new §515.569.
The authorization in §515.545 for transactions directly incident to the importation or
exportation of information and informational materi als is amended to note that specific licenses may
be issued authorizing travel-related transactions for purposes related to such activities.
Section 515.559, governing licensing policy with respect to transactions by U.S.-owned or
controlled foreign firms with Cuba, is amended to add a statement that specific licenses may be issuedauthorizing travel-related transactions for pur poses related to marketing, sales negotiation,
accompanied delivery, or servicing of exports found consistent with relevant OFAC export licensing
policy; for example, exports of medicine and medical supplies.
Old §515.560 authorized by general or specific license travel-related transactions to and
within Cuba incident to specified activities set forth in that section.  New §515.560 continues to set
forth the types of transactions that may be author ized incident to travel to Cuba, but the underlying
activities for which such transactions may be authorized are now described in separate, self- contained
sections, referenced in paragraph (a) of §515.560. Paragraph (b) of §515.560 is amended to cite
OFAC's general licensing authority referred to in §515.801 to license travel-related transactions foractivities not specifically covered in part 515. Paragraph (c) of §515.560 continues to list the travel-
related transactions that may be authorized for generally and specifically licensed travellers to Cuba.
Paragraph (c)(2) of §515.560 increases the per diem for expenses in Cuba from $100 to the amount
authorized for civilian employees of the United States Government in Havana, Cuba, currently set atIP/C/W/139/Add.2
Page 5
$183.  Changes in the per diem rate are published as required in the monthly State Department
publication "Maximum Travel Per Diem Allowances for Foreign Areas," available from the
Government Printing Office or on the Internet at http://www.state.gov/www/perdiems/index.html.
New §515.560 also incorporates old §515.569, governing currency carried to Cuba by authorized
travellers.
Section 515.561, previously reserved, now contains the general license authorizing travel-
related transactions for the purpose of visiting close relatives in Cuba, previously contained in old
§515.560(a)(1)(iii).  This general license, available once in any 12-month period, is only available in
cases involving "humanitarian need."  Any additional visits within a 12-month period require specific
licensing under §515.561(b), based on "humanitarian need."
Old §515.562, authorizing U.S.-owned or controlled foreign firms to bunker vessels or fuel
aircraft owned or controlled by, or chartered to, Cuba or nationals thereof, is moved to §515.558. New
§515.562 now contains the general license authorizing travel-related and other transactions directly
incident to official government travel to, from, and within Cuba, previously contained in
§515.560(a)(1)(i).
New §515.563 now contains the general license fo r travel-related and other transactions
directly incident to journalism, previously contained in old §515.560(a)(1)(ii) and now expanded to
include travel-related transactions on the part of persons regularly employed as supporting broadcast
or technical personnel.  New §515.563 also incorporates the specific licensing criteria for free-lancejournalism previously set forth as an interpretive provision in old §515.417 and now expanded to
allow for specific licenses authorizing transactions for multiple trips to Cuba in certain cases.
Old §515.564, authorizing transactions incident to travel to, from, and within the United
States by certain Cuban nationals, is incorporated in new §515.571.  New §515.564 consolidates oldSecs. 515.416, 515.419(a)(1), and 515.560(b), setting forth a general license for travel-related and
other transactions directly incident to professional research and attendance at professional meetings in
Cuba hosted by international organizations; these activities were previously authorized only by
specific license.
Old §515.565, authorizing transactions for public exhibitions and performances by specific
license, is incorporated in new §515.567.  New §515.565 consolidates old Secs. 515.419, 515.560(b),and 515.573 to authorize travel-related and other transactions directly incident to a wide range of
educational activities, including those undertaken by secondary school students, where the traveller
carries a letter from his or her academic institution located in the United States confirming that he or
she is affiliated with that institution.  Use of this authorization requires that the accredited U.S.
academic institution under whose auspices the educational activities are undertaken first obtain aspecific license from OFAC authorizing the institution and its students and employees to engage in
travel-related and other transactions directly incident to the generally-licensed educational activities
set forth in §515.565(a)(2)(i) to (a)(2)(vii).  Such activities include teaching at a Cuban academic
institution by persons employed in a teaching capacity in the United States, as well as sponsoring
Cuban scholars to teach or engage in other scholarly activity in the United States, including thepayment of a stipend or salary to the sponsored scholars.  In addition, specific licenses pursuant to
§515.565(b) may be issued authorizing transactions incident to certain educational activities not
covered by a specific license issued pursuant to §515.565(a) to a U.S. academic institution or incident
to certain educational exchanges not involving academic study pursuant to a degree program.
Old §515.566, previously setting forth the criteria pursuant to which persons may be
authorized to engage in transactions involving Cuba  as travel or carrier service providers or family
remittance forwarders, is moved to new §515.572.  New §515.566(a) authorizes travel-related and
other transactions directly incident to religious activities in Cuba, where the traveller carries a letterIP/C/W/139/Add.2
Page 6
from his or her religious organization located in the United States confirming that he or she is
affiliated with that organization and is traveling to Cuba to undertake religious activities under the
organization's auspices.  Use of this authorization requires that the U.S. religious organization itself
obtain a specific license from OFAC authorizing the religious organization and affiliated individuals
and groups to engage in travel-related and other transactions that are directly incident to religiousactivities in Cuba under the auspices of the licensed religious organization.  Pursuant to §515.566(b),
specific licenses may also be issued for other religious activities in Cuba.
Old §515.567, setting forth specific licensing criteria for unblocking certain corporate assets,
is now contained in §515.521.  New §515.567(a) sets forth a general license authorizing travel-related
and other transactions directly incident to certain amateur and semi-professional athletic competitions
by athletes or teams.  Paragraph (b) of §515.567 incorporates old §515.565, setting forth the specific
licensing criteria for travel-related and other transactions directly incident to participation in a publicperformance, clinic, workshop, athletic or other competition, or exhibition in Cuba, or for transactions
on behalf of a Cuban national in the United States for the purpose of participation in such activities.
Specific licenses authorizing transactions for multiple trips to Cuba for these purposes may also be
issued.
Old §515.568, setting forth specific licensing criteria for unblocking certain decedent estate
assets, is moved to §515.522.
Old §515.569, governing the carriage of currency by travellers to Cuba, has been incorporated
into new §515.560.  New §515.569 now contains old §515.540, generally authorizing foreign personsto import Cuban-origin goods (except for tobacco and alcohol) as accompanied baggage when
entering the United States.
Old §515.572, setting forth specific licensing criteria for the operation of news bureau's in
Cuba, is moved to new §515.573.
Section 515.574, setting forth specific licensing criteria for authorizing transactions in support
of the Cuban people, is amended to add a statement that specific licenses may be issued authorizing
travel-related transactions for such activities.
Section 515.575 is added to set forth specific licensing criteria for authorizing travel-related
and other transactions for certain humanitarian proj ects designed to directly benefit the Cuban people,
including medical and health-related, environmental, small-scale enterprise, and agricultural and rural
development projects.  Specific licenses authorizing transactions for multiple trips to Cuba for these
purposes may also be issued.
Section 515.576 is added to set forth specific licensing criteria for authorizing travel-related
and other transactions for activities of private foundations or research or educational institutes with an
established interest in international relations.  Specific licenses authorizing transactions for multiple
trips to Cuba for these purposes may also be issued.
Miscellaneous Provisions
Section 515.206 of the CACR is amended to conform the scope of exempt transactions to
include the statutory exemption for the donation of food to nongovernmental organizations or
individuals in Cuba contained in section 1705( b) of the Cuban Democracy Act (22 U.S.C. 6001-6010,
6004(b)).
Section 515.527 of the CACR is amended to conform the scope of authorized transactions
pertaining to intellectual property rights to the statutory restriction contained in section 211 of
Division A, Title II, of the Omni bus Consolidated and Emergency Supplemental Appropriations Act,IP/C/W/139/Add.2
Page 7
1999 (Public Law 105-277 [H.R. 4328]), excluding from the scope of the general license contained in
§515.527 any transaction or payment with respect to a mark, trade name, or commercial name that is
the same as or substantially similar to a mark, trade name, or commercial name that was used in
connection with a business or assets that were confiscated, unless the original owner of the mark,
trade name, or commercial name or the bona fide  successor-in-interest has expressly consented.
Old §515.571, waiving under certain circumstances the prohibition contained in §515.207
(prohibiting certain vessels that have engaged in trade with Cuba from entering U.S. ports), is moved
to §515.550 and amended to expand the waiver to cover vessels involved in any trade transactions
authorized pursuant to §515.533.
The following two charts provide easy referen ce to the regulatory changes that have been
made: the first lists the new section designations, their subjects, and from what former sections they
are derived; the second lists the former section designations and indicates where the content of the old
sections now appears.
Derivation of New Sections
New Section Subject Source
§515.420 Fully-hosted travel §515.560(g)
§515.521 Blocked corporate assets §515.567
§515.522 Blocked estate assets §515.568
§515.550 Vessel waiver §515.571
§515.558 Cuban carriers §515.562
§515.561 Family visits §525.560(a)
§515.562 Official travel §515.560(a)
§515.563 Journalism §§515.417, 515.560(a)
§515.564 Professional research §§515.416, 515.419(a)(1),
515.560(b), CDA
§515.565 Educational activities §§515.419, 515.560(b),
515.573
§515.566 Religious activities §515.560(b)
§515.567 Athletic/cultural activities §515.565
§515.568 Reserved Foreign persons'
baggage§515.540
§515.570 Remittances §§515.521, 515.556,
515,563
§515.571 Cubans in United States §§515.518, 515.564
§515.572 Travel and carrier service §515.566
§515.573 News organizations §525.572
§515.575 Humanitarian projects §515.560(b); new
§515.576 Foundation projects §515.416(a)(1), (ii); new
Distribution of Former Sections
Former
SectionSubject New Location
§515.416 Professional research §515.564
§515.417 Free-lance journalism §515.563(b)
§515.419 Educational activities §515.565
§515.518 Cubans in United States §515.571(b)IP/C/W/139/Add.2
Page 8
§515.521 Remittances to Cubans §515.570
§515.540 Foreign persons' baggage §515.569
§515.556 Remittances to Cubans §515.570
§515.558 Sole proprietors §515.546
§515.562 Cuban carriers §515.558
§515.563 Family remittances §515.570
§515.564 Cubans in United States §515.571(a)
§515.565 Public exhibitions §515.567(b)
§515.566 Travel and carrier service §515.572
§515.567 Blocked corporate assets §515.521
§515.568 Blocked estate assets §515.522
§515.569 Currency §515.560
§515.571 Vessel waiver §515.550
§515.572 News organizations §515.573
§515.573 Educational activities §515.565
Because the Regulations involve a foreign affairs function, Executive Order 12866 and the
provisions of the Administrative Procedure Act (5 U.S.C. 553)(the "APA") requiring notice of
proposed rulemaking, opportunity for public participation, and delay in effective date are inapplicable.
Because no notice of proposed rulemaking is required  for this rule, the Regulatory Flexibility Act (5
U.S.C. 601-612) does not apply.
Paperwork Reduction Act
The Regulations are being issued without prior notice and public comment procedure
pursuant to the APA.  The collections of informa tion related to the Regulations are contained in 31
CFR part 501 (the "Reporting and Procedures Regulations").  Pursuant to the Paperwork Reduction
Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of
Management and Budget under control number 1505-0164.  An agency may not conduct or sponsor,
and a person is not required to respond to, a collection of information unless the collection ofinformation displays a valid control number.
List of Subjects in 31 CFR Part 515
Administrative practice and procedure, Air carr iers, Banks, banking, Blocking of assets,
Cuba, Currency, Estates, Exports, Foreign investment in the United States, Foreign trade, Imports,
Informational materials, Intellectual property, Pe nalties, Publications, Reporting and recordkeeping
requirements, Securities, Shipping, Specially designated nationals, Terrorism, Travel restrictions,
Trusts and trustees, Vessels.
For the reasons set forth in the preamble, 31 CFR part 515 is amended as set forth below:
PART 515 - CUBAN ASSETS CONTROL REGULATIONS1. The authority citation for part 515 continues to read as follows:
Authority: 18 U.S.C. 2332d; 22 U.S.C. 2370(a) , 6001-6010, 6021-6091; 31 U.S.C. 321(b); 50 U.S.C.
App. 1-44; Pub. L. 101-410, 104 Stat. 890 (28 U.S.C. 2461 note); Pub. L. 105-277; E.O. 9193, 7 FR
5205, 3 CFR, 1938-1943 Comp., p. 1147; E.O. 9989, 13 FR 4891, 3 CFR, 1943-48 Comp., p. 748;
Proc. 3447, 27 FR 1085, 3 CFR 1959-1963 Comp., p. 157; E.O. 12854, 58 FR 36587, 3 CFR, 1993
Comp., p. 614.IP/C/W/139/Add.2
Page 9
Subpart D - Prohibitions
2. Section 515.206 is amended as follows:
A. The section heading is revised to read as set forth below.
B. Paragraphs (a) through (d) are redesignated as paragraphs (a)(1) through (a)(4).
C. A heading for paragraph (a) is added as set forth below.
D. Redesignated paragraph (a)(3) is amended by removing the words "section 779 of the Export
Administration Regulations, 15 CFR parts 768-799," and adding in their place the words "the
Export Administration Regulations, 15 CFR parts 730-774,".
E. Redesignated paragraph (a)(4) is amended by removing the words "§515.560 or by specific
license." and adding in their place "§515.545.".
F. New paragraph (b) is added to read as follows:
§ 515.206 Exempt transactions.
(a) Information and informational materials . (1) * * *
* * * * *
(b) Donation of food .  The prohibitions contained in this part do not apply to transactions
incident to the donation of food to nongovernmental organizations or individuals in Cuba.
Subpart C - General Definitions
3. Section 515.302 is amended as follows:
A. Paragraph (b) is redesignated as new paragraph (c).
B. New paragraph (b) is added to read as follows:
§ 515.302 National.
* * * * *
(b) Persons who travel in Cuba do not become nationals of Cuba solely because of such
travel.
* * * * *
Subpart D – Interpretations
§  515.407 [Amended]
4. Section 515.407 is amended by revising "§515.568" to read "§515.522".
§ 515.415 [Amended]
5. Section 515.415 is amended as follows:
A. Paragraph (b) is amended by revising "§515.564" to read "§515.571".
B. Paragraph (c) is amended by removing the words "within the general license of §515.560"
and adding in their place "as set forth in §515.560(c)".IP/C/W/139/Add.2
Page 10
§ 515.416 [Removed and reserved]
6. Section 515.416 is removed and reserved.
§ 515.417 [Removed and reserved]
7. Section 515.417 is removed and reserved.
§ 515.418 [Amended]
8. Paragraph (b) of §515.418 is amended by revising "515.560(b)", wherever it appears, to read
"515.545".
§ 515.419 [Removed and reserved]
9. Section 515.419 is removed and reserved.
10. Section 515.420 is added to Subpart D to read as follows:
§ 515.420 Fully-hosted travel to Cuba.
(a) A person subject to the jurisdiction of the United States who is not authorized to
engage in travel-related transactions in which Cuba has an interest will not be considered to
violate the prohibitions of this part when a person not subject to the jurisdiction of the United
States covers the cost of all transactions rela ted to the travel of the person subject to the
jurisdiction of the United States (the "fully-hosted" traveller), provided that:
(1) No person subject to the jurisdiction of the United States has made any payments ortransferred any property or provided any servi ce to Cuba or a Cuban national in connection
with such fully-hosted travel or has prepaid or reimbursed any person for travel expenses,
except as authorized in paragraph (b) of this section; and
(2) The travel is not aboard a direct flight between the United States and Cuba authorized
pursuant to §515.572.
(b) Travel will be considered fully hosted notwithstanding a payment by a person subject
to the jurisdiction of the United States for transportation to and from Cuba, provided that thecarrier furnishing the transportation is not a Cuban national.  Persons authorized as travel
service providers pursuant to §515.572 may book passage on behalf of fully-hosted travellers
through to Cuba, provided that such travel is not on a direct flight from the United States and
that the carrier furnishing the transportation is not a Cuban national.
(c) Unless otherwise authorized pursuant to this part, any person subject to thejurisdiction of the United States who has travelled to Cuba shall be presumed to have engaged
in travel-related transactions prohibited by §515.201.  This presumption may be rebutted by a
statement signed by the traveller providing specific supporting documentation showing that
no transactions were engaged in by the traveller or on the traveller's behalf by other persons
subject to U.S. jurisdiction or showing that the traveller was fully hosted by a third party notsubject to the jurisdiction of the United States and that payments made on the traveller's
behalf were not in exchange for services provided to Cuba or any national thereof.  The
statement should address the circumstances of the travel and explain how it was possible for
the traveller to avoid entering into travel-related transactions such as payments for meals,
lodging, transportation, bunkering of vessels, visas, entry or exit fees, and gratuities.  Ifapplicable, the statement should state what party hosted the travel and why.  The statement
must provide a day-to-day account of financial transactions waived or entered into on behalf
of the traveller by the host, including but not limited to visa fees, room and board, local or
international transportation costs, and Cuban airport departure taxes.  In the case of pleasureIP/C/W/139/Add.2
Page 11
craft calling at Cuban marinas, the statement must also address related refueling costs,
mooring fees, club membership fees, provisions, cruising permits, local land transportation,
and departure fees.  Travellers fully hosted by a person or persons not subject to the
jurisdiction of the United States must also pr ovide an original signed statement from their
sponsor or host, specific to that traveller, confirming that the travel was fully hosted and thereasons for the travel.
Note to paragraph (c):   Travellers should be aware that fully-hosted travellers are not
travellers whose travel-related transactions are licensed pursuant to this part and therefore
such fully-hosted travellers may not engage in the travel-related transactions set forth in
§515.560(c), including the purchase and importation of up to $100 of Cuban merchandise for
personal use.  All documentation described in paragraph (c) of this section is subject to therecordkeeping requirements, including the record retention period, in §501.601 of this
chapter.
(d) Persons planning to travel to Cuba may access the Office of Foreign Assets Control's
information resources over the Internet at http://www.treas.gov/ofac, through the office's fax-on-demand service at 202/622-0077, or by calling the office's Compliance Programs Division
at 202/622-2490, prior to their departure to familiarize themselves with the requirements for
fully-hosted travel.  Other inquiries concerning tr avel-related transactions should be addressed
to the Licensing Division, Office of Foreign Asse ts Control, U.S. Department of the Treasury,
1500 Pennsylvania Avenue, NW - Annex, Washington, DC 20220.
Subpart E - Licenses, Authorizations, and Statements of Licensing Policy
§ 515.518 [Removed and reserved]
11. Section 515.518 is removed and reserved.
§§515.521, 515.563, 515.564, 515.565, 515.569, 515.573 [Removed]
12. Sections 515.521, 515.563, 515.564, 515.565, 515.569, and 515.573 are removed.
13. The sections listed in the first column below are redesignated as shown in the second column:
Old Section New Section
§515.540 §515.569
§515.558 §515.546
§515.562 §515.558
§515.566 §515.572
§515.567 §515.521
§515.568 §515.522
§515.571 §515.550
§515.572 §515.573
§ 515.523 [Amended]
14. Paragraph (b)(3) of §515.523 is amended by revising "§515.568" to read "§515.522".IP/C/W/139/Add.2
Page 12
§ 515.525 [Amended]
15. Paragraph (b) of §515.525 is amended by revising "§515.523, §515.568" to read "§515.522,
§515.523".
16. Section 515.527 is amended by designating the existing text as paragraph (a)(1) and adding
paragraph (a)(2) to read as follows:
§ 515.527 Certain transactions with respect to United States intellectual property.
(a)(1) * * *
(2) No transaction or payment is authorized or approved pursuant to paragraph (a)(1) ofthis section with respect to a mark, trade name, or commercial name that is the same as or
substantially similar to a mark, trade name, or commercial name that was used in connection
with a business or assets that were confiscated, as that term is defined in §515.336, unless the
original owner of the mark, trade name, or commercial name, or the bona fide successor-in-
interest has expressly consented.
* * * * *17. In §515.533, the section heading is revised; the introductory text of paragraph (a) and
paragraphs (a)(1) and (d) are revised; and paragraphs (e) and (f) and a note to the section are added toread as follows:
§ 515.533 Transactions incident to exportations from the United States to Cuba.
(a) All transactions ordinarily incident to the exportation of goods, wares, and
merchandise from the United States to any person within Cuba are hereby authorized,
provided the following terms and conditions are complied with:
(1) The exportation is licensed or otherwise authorized by the Department of Commerce
under the provisions of the Export Administra tion Act of 1979, as amended (50 U.S.C. app.
2401-2420) (see the Export Administration Regulations, 15 CFR 730-774); and
* * * * *
(d) This section does not authorize any exportation under License Exception GFT, 15
CFR 740.12, except gift parcels that contain only food, vitamins, seeds, medicines, medical
supplies and devices, hospital supplies and equipment, equipment for the handicapped,
clothing, personal hygiene items, veterinary medicines and supplies, fishing equipment andsupplies, soap-making equipment, or certain radio equipment and batteries for such
equipment, as specifically set forth in 15 CFR 740.12, and that otherwise comply with the
requirements of that section.
(e) Specific licenses may be issued on a case-by-case basis authorizing the travel-related
transactions set forth in §515.560(c) and other transactions that are directly incident to themarketing, sales negotiation, accompanied delivery, or servicing of exports that appear
consistent with the export licensing policy of the Department of Commerce.
(f) This section does not authorize trade financing with respect to the commercial sale of
food or agricultural commodities.
Note to §515.533:  For the waiver of the prohibition contained in §515.207 on certain vesseltransactions for vessels transporting shipments of goods, wares, or merchandise between the United
States and Cuba pursuant to this section, see §515.550.IP/C/W/139/Add.2
Page 13
§515.540 [Removed and reserved]
18. Section 515.540 is removed and reserved.
19. Section 515.545 is amended as follows:A. Paragraph (b) is amended by revising " §515.206(c)" to read " §515.206(a)(3)".
B. Paragraph (c) is added to read as follows:
§515.545 Transactions related to information and informational materials.
* * * * *
(c) Specific licenses may be issued on a case-by-case basis authorizing the travel-related
transactions set forth in §515.560(c) for purposes related to the exportation, importation, or
transmission of information or informational materials as defined in §515.332.
20. Newly redesignated §515.550 is revised to read as follows:
§515.550 Certain vessel transactions authorized.
Unless a vessel has otherwise engaged in transactions that would prohibit entry pursuant to §515.207,
§515.207 shall not apply to a vessel that is:
(a) Engaging in trade with Cuba authorized by licenses issued pursuant to §515.533 or
§515.559; or
(b) Engaging in trade with Cuba that is exempt from the prohibitions of this part (see§515.206).
§515.551 [Amended]
21. Paragraph (a)(3) of §515.551 is amended by revising " §515.568" to read " §515.522".
§515.556 [Removed and reserved]
22. Section 515.556 is removed and reserved.
23. Section 515.559 is amended by adding paragraph (b)(2) and a note to the section to read as
follows:
§515.559 Transactions by U.S.-owned or controlled foreign firms with Cuba.
* * * * *
(b) * * *
(2) Travel-related transactions set forth in §515.560(c) and other transactions that are
directly incident to marketing, sales negotiation, accompanied delivery, or servicing of
exports that are consistent with the licensing policy under this section.
* * * * *IP/C/W/139/Add.2
Page 14
Note to §515.559:   Transactions by U.S.-owned or controlled foreign firms in connection with the
exportation of information or informational mate rials or the donation of food to nongovernmental
entities or individuals in Cuba are exempt from the prohibitions of this part.  See §515.206.  For the
waiver of the prohibition contained in §515.207 on certain vessel transactions for vessels transporting
shipments of goods, wares, or merchandise pursuant to this section, see §515.550.
24. Section 515.560 is revised to read as follows:
§515.560 Travel-related transactions to, from, and within Cuba by persons subject to U.S.
jurisdiction.
(a) The travel-related transactions listed in paragraph (c) of this section may be
authorized either by a general license or on a case-by-case basis by a specific license for
travel related to the following activities (see the referenced sections for general and specific
licensing criteria):
(1) Family visits (general and specific licenses) (see §515.561);
(2) Official business of the U.S. government, foreign governments, and certainintergovernmental organizations (general license) (see §515.562);
(3) Journalistic activity (general and specific licenses) (see §515.563);
(4) Professional research (general and specific licenses) (see §515.564);
(5) Educational activities (specific licenses) (see §515.565);
(6) Religious activities (specific licenses) (see §515.566);
(7) Public performances, clinics, workshops, athletic and other competitions, and
exhibitions (general and specific licenses) (see §515.567);
(8) Support for the Cuban people (specific licenses) (see §515.574);
(9) Humanitarian projects (specific licenses) (see §515.575);
(10) Activities of private foundations or research or educational institutes (specificlicenses) (see §515.576);
(11) Exportation, importation, or transmission of information or informational materials
(specific licenses) (see §515.545); and
(12) Certain export transactions that may be considered for authorization under existing
Department of Commerce regulations and guidelines with respect to Cuba or engaged in by
U.S.-owned or controlled foreign firms (specific licenses) (see Secs. 515.533 and 515.559).
(b) Travel-related transactions in connection with activities other than those referenced inparagraph (a) of this section may be authorized on a case-by-case basis by a specific license
issued pursuant to §515.801.
(c) Persons generally or specifically licensed und er this part to engage in transactions in
connection with travel to, from, and within Cuba may engage in the following transactions:
(1) Transportation to and from Cuba .  All transportation-related transactions ordinarily
incident to travel to and from (not within) Cuba, provided no more than $500 may be remitted
to Cuba directly or indirectly in any consecutive 12-month period for fees imposed by the
Government of Cuba in conjunction with such travel unless otherwise authorized.
(2) Living expenses in Cuba . All transactions ordinarily incident to travel anywhere
within Cuba, including payment of living expens es and the acquisition in Cuba of goods for
personal consumption there, provided that, unless otherwise authorized, the total for such
expenses does not exceed the "maximum per diem rate" for Havana, Cuba in effect during the
period that the travel takes place.  The per diem rate is published in the State Department's
"Maximum Travel Per Diem Allowances for Foreign Areas," a supplement to section 925,
Department of State Standardized Regulati ons (Government Civilians, Foreign Areas),
available from the Government Printing Office, Superintendent of Documents, P.O. Box
371954, Pittsburgh, PA 15250-7954, or on the Internet at
http://www.state.gov/www/perdiems/index.html.IP/C/W/139/Add.2
Page 15
(3) Purchase in Cuba and importation into the United States of merchandise .  The
purchase in Cuba and importation as accompanied baggage into the United States of
merchandise with a foreign market value not to exceed $100 per person, provided the
merchandise is imported for personal use only. Such merchandise may not be resold.  This
authorization may be used only once every six consecutive months. As provided in§515.206(a), the purchase and importation of information or informational materials are
exempt from all restrictions contained in this part.
(4) Carrying remittances to Cuba .  The carrying to Cuba of any remittances that the
licensed traveller is authorized to remit pursuant to §515.570, provided that no more than
$300 of remittances authorized by §515.570(a) or (b) is carried in any one trip, unless
otherwise authorized.  Those licensed travellers carrying either of the emigration remittances
authorized pursuant to §515.570(c) must be able to produce the visa recipient's full name and
date of birth and the number and date of issuance of the visa or other travel authorization
issued.  A licensed traveller to Cuba is only authorized to carry remittances that he or she is
authorized to remit and may not carry remittances being made by other persons.
(5) Processing certain financial instruments .  All transactions incident to the processing
and payment of checks, drafts, travellers' checks, and similar instruments negotiated in Cubaby any person authorized pursuant to this part to engage in financial transactions in Cuba.  For
purposes of this section, the authorized transactions may be conducted using currency, which
is defined as money, cash, drafts, notes, travellers' checks, negotiable instruments, or scrip
having a specified or readily determinable face value or worth, but which does not include
gold or other precious metals in any form.
Note to paragraph (c):   The authorizations in paragraph (c) of this section do not apply to
fully-hosted travellers because their travel-related transactions are not licensed or authorized
pursuant to this part. See §515.420.
(d) A Cuban national departing the United States may carry currency, as that term is
defined in paragraph (c)(5) of this section, as follows:
(1) The amount of any currency brought into the United States by the Cuban national and
registered with the U.S. Customs Service upon entry;
(2) Up to $300 in funds received as remittances by the Cuban national during his or her
stay in the United States; and
(3) Compensation earned by a Cuban national from a U.S. academic institution up to anyamount that can be substantiated through payment receipts from such institution as authorized
pursuant to §515.565(a)(2)(v).
(e) The following transactions by persons generally or specifically licensed to engage in
travel-related transactions to, from, and within Cuba are prohibited by §515.201 unless
specifically authorized:(1) All transactions by persons subject to U.S. jurisdiction related to the utilization of
charge cards, including but not limited to debit or credit cards, for expenditures in Cuba.
(2) All transactions related to the processing and payment by persons subject to U.S.
jurisdiction, such as charge card issuers or intermediary banks, of charge card instruments
(e.g., vouchers, drafts, or sales receipts) for expenditures in Cuba. The issuer of a charge card,or a foreign charge card firm owned or controlled by persons subject to U.S. jurisdiction, is
not authorized to deal with a Cuban enterprise, a Cuban national, or a third-country person,
such as a franchisee, in connection with the extension of charge card services to any person in
Cuba.
(f) Persons traveling to Cuba fully hosted as described in §515.420 may not carry
currency to pay for living expenses or the purc hase of goods in Cuba except as specifically
licensed pursuant to or exempted from the application of this part.
(g) Nothing in this section authorizes transactions in connection with tourist travel to
Cuba, nor does it authorize transactions in relation to any business travel, including making orIP/C/W/139/Add.2
Page 16
agreeing to make any investment in Cuba, establishing or agreeing to establish any branch or
agency in Cuba, or transferring or agreeing to transfer any property to Cuba, except transfers
by or on behalf of individual or group travellers authorized pursuant to this part.
25. Section 515.561 is added to read as follows:
§515.561 Persons visiting family members in Cuba.
(a) General license .  The travel-related transactions set forth in §515.560(c) are
authorized in connection with travel to Cuba by persons and persons traveling with them who
share a common dwelling as a family with them who are traveling to visit close relatives in
Cuba in circumstances that demonstrate humanitarian need, provided that the authorizationcontained in this paragraph may be used only once in any 12-month period. See Secs. 501.601
and 501.602 of this chapter for applicable recordkeeping and reporting requirements.  Any
additional transactions must be specifically licensed pursuant to paragraph (b) of this section.
(b) Specific licenses .  Specific licenses may be issued on a case-by-case basis authorizing
the travel-related transactions set forth in §515.560(c) in connection with travel to Cuba by
persons, and persons traveling with them who share a common dwelling as a family with
them, who seek to travel to visit close relatives in Cuba more than once in any consecutive
12-month period in cases involving humanitarian need.
(c) For purposes of this section, the term close relative  used with respect to any person
means such person's spouse, child, grandchild, parent, grandparent, great grandparent, uncle,aunt, brother, sister, nephew, niece, first cous in, mother-in-law, father-in-law, son-in-law,
daughter-in-law, sister-in-law, brother-in-law , or spouse, widow, or widower of any of the
foregoing.
26. New §515.562 is added to read as follows:
§515.562 Officials of the U.S. government, foreign governments, and certain intergovernmental
organizations traveling to, from, and within Cuba on official business.
The travel-related transactions set forth in §515.560(c) and such additional transactions as are
directly incident to activities in their official capacities by persons who are officials of the United
States Government, any foreign government, or any intergovernmental organization of which theUnited States is a member and who are traveling on the official business of their government or
international organization are authorized.
27. New §515.563 is added to read as follows:
§515.563 Journalistic activities in Cuba.
(a) General license.   The travel-related transactions set forth in §515.560(c) and such
additional transactions as are directly incident to journalistic activities in Cuba by persons
regularly employed as journalists by a news reporting organization or by persons regularlyemployed as supporting broadcast or technical personnel are authorized.
Note to paragraph (a):  See Secs. 501.601 and 501.602 of this chapter for applicable
recordkeeping and reporting requirements.  The exportation of equipment and other items to
be used in journalistic activities may require separate licensing by the Department of
Commerce.(b) Specific licenses .  (1) Specific licenses may be issued on a case-by-case basis
authorizing the travel-related transactions set forth in §515.560(c) and other transactions that
are directly incident to doing research in Cuba for a free-lance article upon submission of an
adequate written application including the following documentation:IP/C/W/139/Add.2
Page 17
(i) A detailed itinerary and a detailed description of the proposed research; and
(ii) A resume or similar document showing a record of publications.
(2) To qualify for a specific license pursuant to this section, the itinerary for the proposed
research in Cuba for a free-lance article must demonstrate that the research constitutes a full
work schedule that could not be accomplished in a shorter period of time.(3) Specific licenses may be issued pursuant to this section authorizing transactions for
multiple trips to Cuba over an extended period of time by applicants demonstrating a
significant record of free-lance journalism.
28. New §515.564 is added to read as follows:
§515.564 Professional research and professional meetings in Cuba.
(a) General license .  (1) The travel-related transactions set forth in §515.560(c) and such
additional transactions that are directly incident to professional research by full-time
professionals who travel to Cuba to conduct professional research in their professional areas
are authorized, provided that:(i) The research is of a noncommercial, academic nature;
(ii) The research comprises a full work schedule in Cuba;
(iii) The research has a substantial likelihood of public dissemination; and
(iv) The research does not fall within the categories of activities described in paragraph
(c), (d), or (e) of this section.(2) The travel-related transactions set forth in §515.560(c) and such additional
transactions as are directly incident to travel to Cuba by full-time professionals to attend
professional meetings or conferences in Cuba organized by an international professional
organization, institution, or association that regularly sponsors meetings or conferences in
other countries are authorized, provided that:(i) The international professional organization, institution, or association is not
headquartered in the United States unless that organization, institution, or association has
been specifically licensed to sponsor the meeting in Cuba;
(ii) The purpose of the meeting or conference is not the promotion of tourism in Cuba or
other commercial activities involving Cuba that are inconsistent with this part; and
(iii) The meeting or conference is not intended primarily for the purpose of fostering
production of any biotechnological products.Note to paragraph (a):  See Secs. 501.601 and 501.602 of this chapter for applicable
recordkeeping and reporting requirements.  Exportation of equipment and other items,
including the transfer of technology or software to foreign persons ("deemed exportation")
and items not eligible for Department of Commerce GFT or BAG License Exceptions, 15
CFR 740.12 and 740.14, may require separate author ization by the Department of Commerce.
(b) Specific licensing .  Specific licenses may be issued on a case-by-case basis
authorizing the travel-related transactions set forth in §515.560(c) and other transactions that
are directly incident to professional research and professional meetings that do not qualify for
the general license in paragraph (a) of this section.  Specific licenses may be issued pursuant
to this section authorizing transactions for multiple trips to Cuba over an extended period oftime by applicants demonstrating a significant record of research.  Specific licenses will not
be issued for travel-related transactions for purposes of attendance at meetings or conferences
in Cuba organized by the Cuban government where such meetings or conferences could be
intended primarily for the purpose of fostering the production of any biotechnological
products.(c) Categories of activities that do not qualify for the general license in paragraph (a) of
this section and for which the specific licenses described in paragraph (b) of this section will
not be issued include recreational travel; tourist travel; travel in pursuit of a hobby; research
for personal satisfaction only; and any travel for an authorized professional research purposeIP/C/W/139/Add.2
Page 18
if the schedule of activities includes free time, travel, or recreation in excess of that consistent
with a full work schedule of professional research or attendance at professional meetings or
conferences. (d) An entire group does not qualify for the general license in paragraph (a) of
this section and will not be issued a specific license under paragraph (b) of this section merely
because some members of the group could qualify individually for such licenses.
Example 1 to paragraph (d):   A musicologist travels to Cuba to do research on Cuban music pursuant
to the general license for professional researchers set forth in paragraph (a) of this section.  Others
who are simply interested in music but who do not research music as part of their careers may not
engage in travel-related transactions with the musi cologist in reliance on this general license.  For
example, an art historian who plays in the same band with the musicologist would not qualify as a
professional researcher of Cuban music for purposes of this general license.
Example 2 to paragraph (d ):  A specific license issued pursuant to paragraph (b) of this section
authorizing travel-related transactions by a fish biologist who travels to Cuba to engage in
professional research does not authorize transactions by other persons who might travel with the fish
biologist but whose principal purpose in travel is to engage in recreational or trophy fishing.  The factthat such persons may engage in certain activities with or under the direction of the professional fish
biologist, such as measuring or recording facts about their catch, does not bring these individuals'
activities within the scope of professional research and similar activities.
(e) A person will not qualify as engaging in professional research merely because that
person is a professional who plans to travel to Cuba.
Example 1 to paragraph (e):   A professor of history interested in traveling to Cuba for the principal
purpose of learning or practising Spanish or attending general purpose lectures devoted to Cuban
culture and contemporary life does not qualify for the general license in paragraph (a) of this sectionor for a specific license issued pursuant to paragraph (b) of this section.
Example 2 to paragraph (e):   A professional photographer who wishes to take photographs in Cuba
that will become the basis for creating post cards, paintings, and other secondary products or that
merely document the photographer's travel does not qualify for the general license in paragraph (a) of
this section or for a specific license issued pursuant to paragraph (b) of this section.
29. New §515.565 is added to read as follows:
§515.565 Educational activities.
(a) Specific license for U.S. academic institutions - (1) Issuance; renewal .  A specific
license may be issued to an accredited U.S. academic institution authorizing the institution
and its students and employees to engage, under the auspices of the institution, in educational
activities involving transactions in which Cuba or a Cuban national has an interest.  The
application for the specific license must establish that the U.S. academic institution is
accredited by an appropriate national or regional educational accrediting association.  Thespecific license may be renewed after a period of two years to authorize the accredited U.S.
academic institution and its students and employees to continue to engage in the transactions
authorized under the institution's license.
(2) Scope of transactions authorized under U.S. academic institution's specific license;
documentation.  Upon receipt of a specific license pursuant to paragraph (a)(1) of this section
by the accredited U.S. academic institution, the institution and its students and employees are
authorized to engage in the travel -related transactions set forth in §515.560(c) and such
additional transactions as are directly incident to any of the categories of educational activities
set forth in paragraphs (a)(2)(i) through (a)(2)(vii) of this section undertaken under theIP/C/W/139/Add.2
Page 19
auspices of the specifically-licensed institution.  Activities covered by this authorization are
limited to the following:
(i) Participation in a structured educational program by an undergraduate or graduate
student or undergraduate or graduate student group as part of a course offered at an accredited
U.S. college or university.  A student planning to engage in such transactions in Cuba mustcarry a letter from the U.S. academic institution stating that the student is currently enrolled in
an undergraduate or graduate degree program there and that the Cuba travel is part of a
structured educational program of that institut ion and citing the number of the relevant U.S.
academic institution's specific license.
(ii) Noncommercial academic research in Cuba specifically related to Cuba by a person
working to qualify academically as a professional (for example, research toward a graduate
degree).  A student planning to engage in such transactions in Cuba must carry a letter fromthe student's accredited U.S. academic institution stating that the individual is currently
enrolled in a graduate degree program and that the Cuba research will be accepted for credit
toward that degree and citing the number of the relevant U.S. academic institution's specific
license.
(iii) Participation in a formal course of study at a Cuban academic institution by anundergraduate or graduate student currently enrolled in a degree program at an accredited
U.S. college or university, provided the formal course of study in Cuba will be accepted for
credit toward the student's undergraduate or graduate degree at that U.S. college or university.
A student planning to engage in such transactions in Cuba must carry with him or her a letter
from the student's U.S. academic institution stating that the student is currently enrolled in anundergraduate or graduate degree program and that the Cuban study will be accepted for
credit toward that degree and citing the number of the relevant U.S. academic institution's
specific license.
(iv) Teaching at a Cuban academic institution by an individual regularly employed in a
teaching capacity at an accredited U.S. college or university, provided the teaching activitiesare related to an academic program at the Cuban institution.  An individual planning to teach
at a Cuban academic institution must obtain and carry a written letter from the individual's
U.S. academic institution, citing the number of that institution's specific license and stating
that the individual is regularly employed there in a teaching capacity.
(v) Sponsorship, including the payment of a stipend or salary, of a Cuban scholar to teach
or engage in other scholarly activity at a college or university in the United States (in addition
to those transactions authorized by the general license contained in §515.571).  Such earnings
may be remitted to Cuba as provided in §515.570, or carried on the person of the Cuban
scholar returning to Cuba as provided in §515.560(d)(3).
(vi) Educational exchanges sponsored by C uban or U.S. secondary schools involving
secondary school students' participation in a formal course of study or in a structured
educational program offered by a secondary school or other academic institution and led by ateacher or other secondary school official.  This authorization includes participation by a
reasonable number of adult chaperones to accompany the secondary school student(s) to
Cuba.  A secondary school group planning to engage in such transactions in Cuba must carry
a letter from the secondary school sponsoring the trip, citing the number of the school's
specific license and listing the names of all persons traveling with the group.(vii) The organization of and preparation for transactions and activities described in
paragraphs (a)(2)(i) through (a)(2)(vi) of this section by a full-time employee of a U.S.
academic institution.  An individual engaging in such transactions must carry a written letter
from the individual's U.S. academic institution, citing the number of that institution's specific
license and stating that the individual is regularly employed there.
Note to paragraph (a):   See §§501.601 and 501.602 of this chapter for applicable
recordkeeping and reporting requirements.  Exportation of equipment and other items,
including the transfer of technology or software to foreign persons (`"deemed exportation"),IP/C/W/139/Add.2
Page 20
and items not eligible for Department of Commerce GFT or BAG License Exceptions, 15
CFR 740.12 and 740.14, may require separate licensing from the Department of Commerce.
(b) Specific license .  Specific licenses may be issued on a case-by-case basis authorizing
the travel-related transactions set forth in §515.560(c) and other transactions that are directly
incident to:
(1) Educational activities described in paragraphs (a)(2)(i) through (a)(2)(iii) of this
section not covered by a specific license issued pursuant to paragraph (a) of this section to an
accredited U.S. academic institution; or
(2) Educational exchanges not involving academic study pursuant to a degree program
when those exchanges take place under the auspices of an organization that sponsors and
organizes such programs to promote people-to-people contact.(c) Transactions related to activities that are primarily tourist-oriented, including self-
directed educational activities that are intended only for personal enrichment, are not
authorized by this section.
30. New §515.566 is added to read as follows:
§515.566 Religious activities in Cuba.
(a) Specific license for U.S. religious organizations  - (1) Issuance; renewal .  A specific
license may be issued to a religious organizatio n located in the United States authorizing the
organization and individuals and groups affiliated with the organization to engage, under the
auspices of the organization, in religious activities involving transactions (including travel-
related transactions) in which Cuba or a Cuban national has an interest.  The application for
the specific license must set forth examples of religious activities to be undertaken in Cuba.
The religious organization's specific license may be renewed after a period of two years toauthorize the organization and individuals and groups affiliated with the organization to
continue to engage in the transactions authorized under the organization's license.
(2) Scope of transactions authorized under U.S. religious organization's specific license;
documentation.   Upon receipt by the religious organization located in the United States of a
specific license pursuant to paragraph (a)(1) of this section, the organization and individuals
or groups affiliated with the organization are authorized to engage in the travel-related
transactions set forth in §515.560(c) and such additional transactions as are directly incident
to religious activities in Cuba under the auspices of the organization.  Travel-related
transactions pursuant to this authorization must be for the purpose of engaging, while in
Cuba, in a full-time program of religious activi ties.  Financial and material donations to Cuba
or Cuban nationals are not authorized by this paragraph (a)(2).  All individuals who engage in
transactions in which Cuba or Cuban nationals have an interest (including travel-relatedtransactions) pursuant to this paragraph (a)(2) must carry with them a letter from the
specifically-licensed U.S. religious organization, citing the number of the organization's
specific license and confirming that they are affiliated with the organization and are traveling
to Cuba to engage in religious activities under the auspices of the organization.
Note to paragraph (a):   See Secs. 501.601 and 501.602 of this chapter for applicable
recordkeeping and reporting requirements.  Exportation of items to be used in Cuba may
require separate licensing by the Department of Commerce.
(b) Specific licenses .  Specific licenses may be issued on a case-by-case basis authorizing
the travel-related transactions set forth in §515.560(c) and other transactions that are directly
incident to religious activities not covered by a specific license issued pursuant to paragraph
(a) of this section to a U.S. religious organization.  Specific licenses may be issued pursuantIP/C/W/139/Add.2
Page 21
to this section authorizing transactions for multiple trips over an extended period of time to
engage in a full-time program of religious activities in Cuba.
31. New §515.567 is added to read as follows:
§515.567 Public performances, clinics, workshops, athletic and other competitions, and
exhibitions.
(a) General license.   The travel-related transactions set forth in §515.560(c) and such
additional transactions as are directly incident to athletic competition by amateur or semi-
professional athletes or amateur or semi-professional athletic teams traveling to participate in
athletic competition held in Cuba are authorized, provided that:(1) The athletic competition in Cuba is held under the auspices of the international sports
federation for the relevant sport;
(2) The United States participants in the athletic competition are selected by the United
States federation for the relevant sport; and
(3) The competition is open for attendance, and in relevant situations participation, by theCuban public.
Note to paragraph (a):  See Secs. 501.601 and 501.602 of this chapter for applicable
recordkeeping and reporting requirements.  Exportation of items to be used in Cuba may
require separate licensing by the Department of Commerce.
(b) Specific licenses .  (1) Specific licenses, including for multiple trips to Cuba over an
extended period of time, may be issued on a case-by-case basis authorizing the travel-related
transactions set forth in §515.560(c) and other transactions that are directly incident to
participation in a public performance, clinic, workshop, athletic or other competition, or
exhibition in Cuba by participants in such activities, provided that:
(i) The event is open for attendance, and in relevant situations participation, by theCuban public;
(ii) All profits from the event after costs are donated to an independent nongovernmental
organization in Cuba or a U.S.-based charity, with the objective, to the extent possible, of
promoting people-to-people contacts or otherwise benefitting the Cuban people.
(2) In addition to those transactions authorized by §515.571, specific licenses may be
issued on a case-by-case basis authorizing transactions incident to participation in a public,
performance, clinic, workshop, or competition in the United States by a Cuban national whoenters the United States for the purpose of such participation on a visa or other travel
authorization issued by the Department of State.
(c) Specific licenses will not be issued pursuant to this section authorizing any:
(1) Payment to Cuba or any national thereof for appearance fees or other such payments
in connection with or resulting from any public exhibition, performance, clinic, workshop, orcompetition in the United States or in Cuba; or
(2) Debit to a blocked account.
§515.568 [Reserved]
32. Section 515.568 is added and reserved.
33. Newly redesignated §515.569 is revised to read as follows:
§515.569 Foreign passengers' baggage.
The importation of Cuban-origin goods, otherwise prohibited by this part, brought into the United
States as baggage by any person arriving in the Unite d States other than a citizen or resident of the
United States is hereby authorized, notwithstanding the provisions of §515.803, provided that suchIP/C/W/139/Add.2
Page 22
goods are not in commercial quantities and are not imported for resale.  This authorization does not
apply to the importation of Cuban-origin alcohol or tobacco products.
34. Section 515.570 is added to read as follows:
§515.570 Remittances to nationals of Cuba.
(a) Family remittances authorized.   (1) Persons subject to the jurisdiction of the United
States who are 18 years of age or older are authorized to make remittances to a national of
Cuba resident in Cuba or in the authorized trad e territory (including any member of his or her
household) who is a close relative of the remitter or of the remitter's spouse, for the support of
the close relative provided that:(i) The remitter's total remittances pursuant to paragraphs (a) and (b) of this section to
any one Cuban household, regardless of the number of close relatives comprising the
household, do not exceed $300 in any consecutive 3-month period; and
(ii) The remittances are not made from a blocked source, except that remittances to
Cuban households located in the authorized trade territory may come from a blocked accountin a banking institution within the United States held in the name of, or in which the
beneficial interest is held by, the payee or members of the payee's household.
(2) A person authorized to make remittances under this paragraph (a) and who is
authorized to engage in travel-related transactions relating to Cuba pursuant to a general
license contained in or specific license issued pursuant to this part may carry no more than$300 in total remittances authorized in this paragraph (a), and only if the remittances will not
exceed the maximum amount set forth in paragraph (a) of this section for any payee within
the past 3 months. See §515.560(c)(4).
(3) For purposes of this paragraph (a), the term close relative  used with respect to any
person means such person's spouse, child, grandchild, parent, grandparent, great grandparent,uncle, aunt, brother, sister, nephew, niece, first cousin, mother-in-law, father-in-law, son-in-
law, daughter-in-law, sister-in-law, brother-in -law, or the spouse, widow, or widower of any
of the foregoing.
Note to paragraph (a):   The maximum amount set forth in paragraph (a) of this section does
not apply to remittances to a Cuban individua l who has been specifically licensed as an
unblocked national pursuant to §515.505(b), as remittances to unblocked persons do not
require separate authorization.
(b) Individual-to-household remittances authorized.   (1) Persons subject to the
jurisdiction of the United States who are 18 years of age or older are authorized to make
remittances to any Cuban household (including to any Cuban individual living alone) locatedin Cuba or in the authorized trade territory, provided that:
(i) The remitter's total remittances pursuant to paragraphs (a) and (b) of this section to
any one Cuban household do not exceed $300 in any consecutive 3-month period;
(ii) No member of the payee's household is a senior-level Cuban government official or
senior-level Cuban communist party official; and(iii) The remittances are not made from a blocked source, except that remittances to
Cuban households located in the authorized trade territory may come from a blocked account
in a banking institution within the United States held in the name of, or in which the
beneficial interest is held by, the payee or members of the payee's household.
(2) A person authorized to make remittances under this paragraph (b) and who isauthorized to engage in travel-related transactions relating to Cuba pursuant to a general
license contained in or specific license issued pursuant to this part may carry no more than
$300 in total remittances authorized in paragraphs (a) and (b) of this section, and only if theIP/C/W/139/Add.2
Page 23
remittances will not exceed the maximum amount set forth in paragraph (a) or (b) of this
section for any payee within the past 3 months. See §515.560(c)(4).
Note to paragraph (b):  The maximum amount set forth in paragraph (b) of this section does
not apply to remittances to a Cuban individua l who has been specifically licensed as an
unblocked national pursuant to §515.505(b), as remittances to unblocked persons do not
require separate authorization.
(c) Emigration-related remittances authorized .  Persons subject to the jurisdiction of the
United States are authorized to remit the following amounts:
(1) Up to $500 on a one-time basis to any Cuban national for the purpose of covering the
payee's preliminary expenses associated with emigrating from Cuba to the United States.
This remittance may be sent through a licensed remittance forwarding service before the
payee has received a valid visa issued by the State Department or other approved U.S.-immigration document, but may not be carried to Cuba by the remitter during this period.  A
person who is authorized to engage in travel-rel ated transactions relating to Cuba pursuant to
a general license contained in or specific license issued pursuant to this part may carry
remittances pursuant to this paragraph (c)(1), provided the traveller can demonstrate each visa
recipient's full name and date of birth and the number and date of issuance of the U.S. visa orother travel authorization issued. See §515.560(c)(4).  Any amount remitted or carried to
Cuba directly or indirectly in conjunction with the processing of a letter of invitation or
similar document must be applied against the $500 limit; and
(2) Up to an additional $500 on a one-time basis to any Cuban national for the purpose of
enabling the payee to emigrate from Cuba to the United States, including for the purchase ofairline tickets and payment of exit or third-country visa fees or other travel-related fees. Such
remittances may be transferred only after the Cuban individual has received a valid visa
issued by the State Department or other appr oved U.S. immigration documentation.  Persons
remitting amounts pursuant to this paragraph (c)(2) must provide to the remittance forwarder
the visa recipient's full name and date of birth and the number and date of issuance of the U.S.visa or other travel authorization issued.  A person who is authorized to engage in travel
related transactions relating to Cuba pursuant to a general license contained in or specific
license issued pursuant to this part may carry remittances pursuant to this paragraph (c)(2),
provided the traveller can demonstrate each visa recipient's full name and date of birth and the
number and date of issuance of the U.S. visa or other travel authorization issued.  See
§515.560(c)(4).
(d) Specific licenses.   Specific licenses may be issued on a case-by-case basis authorizing
the following:
(1) Remittances by persons subject to U.S. jurisdiction to independent nongovernmental
entities in Cuba;
(2) Repatriation of earnings by a Cuban scholar pursuant to §515.565(a)(2)(v) in excess
of the amount specified in paragraph (a) of this section;(3) Remittances by persons subject to U.S. jurisdiction from blocked accounts to Cuban
households in the authorized trade territory in excess of the amount specified in paragraphs
(a) and (b) of this section; or
(4) Remittances by persons subject to U.S. jurisdiction to a person in Cuba, directly or
indirectly, for transactions to facilitate non- immigrant travel by an individual in Cuba to theUnited States under circumstances where humanitarian need is demonstrated, including
illness or medical emergency.
35. New §515.571 is added to read as follows:IP/C/W/139/Add.2
Page 24
§515.571 Certain transactions incident to travel to, from, and within the United States by Cuban
nationals.
(a) Except as provided in paragraph (c) of this section, the following transactions by or
on behalf of a Cuban national who enters the United States from Cuba on a visa or othertravel authorization issued by the State Department are authorized:
(1) All transactions ordinarily incident to travel between the United States and Cuba,
including the importation into the United States of accompanied baggage for personal use;
(2) All transactions ordinarily incident to travel and maintenance within the United
States, including the payment of living expenses and the acquisition of goods for personal
consumption in the United States;
(3) All transactions on behalf of aircraft or vessels incident to non-scheduled flights orvoyages between the United States and Cuba, provided that the carrier used has a carrier
service provider license issued pursuant to §515.572.  This paragraph does not authorize the
carriage of any merchandise into the United States except accompanied baggage; and
(4) Normal banking transactions involving fore ign currency drafts, travellers' checks, or
other instruments negotiated incident to travel in the United States by any person under theauthority of this section.
(b) Payments and transfers of credit in the United States from blocked accounts in
domestic banking institutions held in the name of a Cuban national who enters the United
States on a visa or other travel authorization issued by the State Department to or upon the
order of such Cuban national are authorized provided that:(1) Such payments and transfers of credit are made only for the living, traveling, and
similar personal expenses in the United States of such Cuban national or his or her family;
(2) The total of all such payments and transfers of credit made under this section from the
accounts of such Cuban national do not exceed $250 in any one calendar month; and
(3) No payment or transfer is made from a blocked account in which a speciallydesignated national has an interest.
(c) This section does not authorize any transfer of property to Cuba, or, except as
otherwise authorized in paragraph (b) of this section, any debit to a blocked account.
36. Newly redesignated § 515.572 is amended as follows:A. The section heading is revised as set forth below.
B. The word "family" is removed wherever it appears.
C. Paragraph (c)(4)(ii) is amended by removing the words "other than close relatives as defined
in § 515.563(b)" and adding in their place the words "ineligible to receive them under
§515.570".
D. Paragraph (d)(2) is amended by removing "§515.601'" and adding in its place "§ 501.601 of
this chapter" and by removing "§515.602" and adding in its place § 501.602 of this chapter".
E. Paragraph (e)(2)(ii)(A) is amended by removing "§ 515.566(e)(3)" and adding in its place
"paragraph (e)(3) of this section".
F. Paragraph (e)(2)(ii)(D) is amended by removing "§ 515.566(b)" and adding in its place
"paragraph (b) of this section".
G. Paragraph (e)(3)(iii) introductory text is amended by removing "§ 515.566," and adding in its
place "this section,".
H. Paragraph (c)(4)(i) is revised to read as follows:IP/C/W/139/Add.2
Page 25
§ 515.572 Authorization of transactions incident to the provision of travel services, carrier
services, and remittance forwarding services.
* * * * *
(c) * * *
(4)(i) In the case of applications for authorization to serve as travel or carrier service
providers, a report on the forms and other procedures used to establish that each customer is
in full compliance with U.S. law implementing the Cuban embargo and either qualifies for
one of the general licenses contained in this part authorizing travel-related transactions in
connection with travel to Cuba, has received a specific license from the Office of Foreign
Assets Control issued pursuant to this part, or is a fully-hosted traveller as described in§515.420.  In the case of a customer traveling pursuant to a general license or claiming to be
traveling fully hosted, the applicant must demonstrate that it requires each customer to attest,
in a signed statement, to his or her qualification for the particular general license or fully-
hosted status claimed.  The statement must provide facts supporting the customer's belief that
he or she qualifies for the general license or fully-hosted status claimed.  In the case of acustomer traveling under a specific license, the applicant must demonstrate that it requires the
customer to furnish it with a copy of the license. The copy of the signed statement or the
specific license must be maintained on file with the applicant.
* * * * *37. The introductory text of paragraph (a) of §515.574 is revised to read as follows:
§515.574 Support for the Cuban people.
(a) Specific licenses may be issued on a case-by-case basis authorizing the travel-related
transactions set forth in §515.560(c) and other transactions that are intended to provide
support for the Cuban people including, but not limited to, the following:
* * * * *38. New § 515.575 is added to subpart E to read as follows:
§515.575 Humanitarian projects.
Specific licenses may be issued on a case-by-case basis authorizing the travel-related
transactions set forth in §515.560(c) and such additional transactions as are directly incident to certainhumanitarian projects in or related to Cuba not otherwise covered by this part that are designed to
directly benefit the Cuban people.  Such projects may include, but are not limited to, medical and
health-related projects, environmental projects, projects involving non-formal educational training
including adult literacy and vocational skills, community-based grass roots projects, projects suitable
to the development of small-scale private enterprise, projects that are related to agricultural and ruraldevelopment which promote independent activity, and projects involving the donation of goods to
meet basic human needs as provided in 15 CFR 740.12(b) of the Export Administration Regulations,
15 CFR parts 730-774.  Specific licenses may be issued authorizing transactions for multiple visits for
the same project over an extended period of time by applicants demonstrating a significant record of
overseas humanitarian projects.
39. New § 515.576 is added to subpart E to read as follows:IP/C/W/139/Add.2
Page 26
§515.576 Activities of private foundations or research or educational institutes.
Specific licenses may be issued on a case-by-case basis authorizing the travel-related
transactions set forth in §515.560(c) and such additional transactions as are directly incident to
activities by private foundations or research or educational institutes that have an established interestin international relations to collect information related to Cuba for noncommercial purposes, not
otherwise covered by the general license for professional research contained in §515.564 or more
properly issued under §515.575, relating to humanitarian projects.  Specific licenses may be issued
pursuant to this section authorizing transactions for multiple trips to Cuba for the same project over an
extended period of time.
Dated: April 30, 1999.
R. Richard Newcomb,
Director, Office of Foreign Assets Control.
Approved: May 5, 1999.
Elisabeth A. Bresee,
Assistant Secretary (Enforcement),Department of the Treasury.
[FR Doc. 99 -12083  Filed 5-10-99 ; 3:39 pm]
BILLING CODE 4810-25-FIP/C/W/139/Add.2
Page 27
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 1999
Argued: October 13, 1999 Decided: February 04, 2000
Docket No. 99-7582
HAVANA CLUB HOLDING, S.A., HAVANA CLUB INTERNA-
TIONAL, S.A.,
Plaintiffs-Counter-Defendants-
Appellants,
v.
GALLEON S.A., BACARDI-MARTINI USA, INC.,
Defendants-Counter-Claimants-
Appellees,
GALLO WINE DISTRIBUTORS, INC., G.W.D. HOLDINGS
INC., PREMIER WINE AND SPIRITS,
Defendants-Appellees.
Before: WINTER, Chief Judge , NEWMAN, and SOTOMAYOR, Circuit Judges .
Appeal from the June 28, 1999, judgment of the United States District Court for the Southern District
of New York (Shira A. Scheindlin, District Judge), dismissing, after a bench trial, Lanham Act claims
for trademark and trade name infringement and for false advertising.  The District Court held the
infringement claims barred by statutory and regulatory provisions of the Cuban embargo and rejected
the false advertising claim for lack of standing, related to the embargo.Affirmed.
Charles S. Sims, New York, N.Y. (Joshua J. Pollack, Jenifer Paine, Proskauer Rose LLP;
Michael Krinsky, Rabinowitz, Boudin, Standa rd, Krinsky & Lieberman, P.C., New York,
N.Y., on the brief), for plaintiffs-appellants.
William R. Golden, Jr., New York, N.Y. (Michelle M. Graham, Margaret Ferguson, Scott H.
Mandel, Kelley Drye & Warren LLP, New York, N.Y., on the brief), for defendants-
appellees.
(Mark Traphagen, Brett G. Kappel, David C. Quam, Marinn F. Carlson, Powell, Goldstein,
Frazer & Murphy, Washington, D.C., submitted a brief for amicus  curiae  Organization for
International Investment).
JON O. NEWMAN, Circuit Judge :
This appeal, raising issues concerning the Cuban embargo, arises from a dispute between two rum
producers over the rights to the "Havana Club" trademark and trade name.  Havana Club Holding,
S.A.  ("HCH") and Havana Club International, S.A.  ("HCI") appeal from the June 28, 1999,
judgment of the United States District Court fo r the Southern District of New York (Shira A.
Scheindlin, District Judge), dismissing trademark,  trade name, and false advertising claims against
Defendants-Appellees Bacardi & Company Ltd. and Bacardi-Martini USA, Inc.  We conclude that theCuban embargo barred assignment to HCH of the "Havana Club" trademark registered in the United
States, that we are precluded by statute from enforcing whatever rights HCI might have to trade name
protection under the General Inter-American Convention for Trade Mark and Commercial Protection,
and that HCI lacks standing to assert its false advertising and unfair competition claims under the
Lanham Act.  We therefore affirm.IP/C/W/139/Add.2
Page 28
Background
Plaintiff-Appellant HCI is a joint stock compan y organized under the laws of Cuba, with its
domicile and principal place of business in C uba.  Plaintiff-Appellant HCH, a Luxembourg
corporation, owns the "Havana Club" trademark in certain countries outside the United States.
Defendant-Appellee Bacardi & Company is a corporation organized in Liechtenstein and
headquartered in the Bahamas, and Defendant-Appellee Bacardi-Martini USA is a Delaware
corporation (collectively "Bacardi").  Defendant Galleon S.A. has merged into Bacardi & Company.
Before the Cuban revolution, Jose Arechabala, S.A.  ("JASA"), a Cuban corporation owned
principally by members of the Arechabala family, produced "Havana Club" rum and owned thetrademark "Havana Club" for use with its rum.  JASA exported its rum to the United States until
1960, when the Cuban government, under the leadership of Fidel Castro, seized and expropriated
JASA's assets.  Neither JASA nor its owners ever received compensation for the seized assets from
the Cuban government.
The Cuban embargo .  In 1963, the United States imposed an embargo on Cuba, reflected in
the Cuban Assets Control Regulations ("CACR"), as amended, 31 C.F.R. §§ 515.101-515.901 (1999),
promulgated pursuant to section 5(b) of the Trading with the Enemy Act of 1917, as amended, 12
U.S.C. § 95a ("TWEA").  In 1996, Congress enacted the Cuban Liberty and Democratic Solidarity
(LIBERTAD) Act ("LIBERTAD Act"), Pub. L.  No. 104-114, 110 Stat. 785 (1996), which, among
other things, codified the regulations implementing the Cuban embargo, see22 U.S.C. § 6032(h).  The
Secretary of the Treasury has the authority to administer the Cuban embargo, which he has delegated
to the Office of Foreign Assets Control ("OFAC"), see31 C.F.R. § 515.802.
The trademarks and their assignment .  From 1972 to 1993, Empresa Cubana Exportadora De
Alimentos y Productos Varios ("Cubaexport"), a Cuban state enterprise, exclusively exported
"Havana Club" rum, primarily to Eastern Europe and the Soviet Union.  Cubaexport registered the
"Havana Club" trademark with Cuban authorities in 1974 under Registration No. 110,353, and with
the United States Patent and Trademark Office ("USPTO") in 1976 under Registration No. 1,031,651.
In 1993, Cubaexport sought to reorganize and find  a foreign partner for its "Havana Club" rum
business.  Havana Rum & Liquors, S.A. ("HR&L"), a newly formed Cuban company, entered into a
joint venture agreement with Pernod Ricard, S.A. ("Pernod"), a French company distributing liquor
internationally.  Under a November 1993 agreem ent between Pernod and HR&L, HCI and HCH were
formed.  In an agreement dated January 10, 1994, Cubaexport assigned trademark Registration No.
1,031,651, the United States registration for the "H avana Club" trademark, to HR&L, and in a
subsequent agreement dated June 22, 1994, HR&L assigned this trademark to HCH.  In 1996, HCH
renewed the United States registration of the "Havana Club" mark for a term of ten years.
In April 1997, Bacardi & Co. purchased the Arechabala family's rights (if any) to the "Havana
Club" trademark, the related goodwill of the busine ss, and any rum business assets still owned by the
Arechabala family.
OFAC's actions concerning the assignments .  After an October 5, 1995, application to OFAC
for a "specific" license authorizing the 1994 assignments of the "Havana Club" trademark from
Cubaexport to HR&L, and from HR&L to HCH,
2  OFAC, on November 13, 1995, issued to
                                                     
2 The CACR authorizes both "general" licenses, see 31 C.F.R. § 515.317, which permit classes or
categories of transactions with Cuban nationals, see, e.g., id. § 515.542(a) (common carriers of mail), and
"specific" licenses, see id. § 515.318, which require individualized determinations and approvals by OFAC, see,
e.g., id. § 515.521 (authorizing specific licenses to unblo ck shares of qualifying United States permanent
residents in "U.S.-located assets" of Cuban corporations).IP/C/W/139/Add.2
Page 29
Cubaexport License No. C-18147, which approved the two assignments and authorized all necessary
transactions incident to the assignments of the mark.
However, on April 17, 1997, after the instant lawsuit was filed in the District Court, OFAC
issued a Notice of Revocation, revoking License No. C-18147.  The revocation notice stated:
You are notified that, as a result of facts and circumstances that have
come to the attention of this Office which were not included in the
application of October 5, 1995, License No. C-18147 .  .  .  is hereby
revoked retroactive to the date of issuance. The determination to
revoke License No.  C-18147 is made pursuant to § 515.805 of the
Cuban Assets Control Regulations, 31 C.F.R.  Part 515.  Any actiontaken under this specific license from the date of issuance until now
is null and void as to matters under the jurisdiction of the Office of
Foreign Assets Control.
The parties' sales of rum .  Since 1994, HCI has exported rum under the "Havana Club" trademark
under an exclusive license to that mark from HC H.  From 1994 to 1998, HCI sold over 38 million
bottles of "Havana Club" rum, with approximately 30 percent of the sales in Cuba--including sales to
Americans traveling in Cuba--and the remainder exported principally to Spain, France, Germany,
Italy, Canada, Mexico, Bolivia and Panama.  Under travel regulations imposed by OFAC, the class of
travelers permitted to visit Cuba may reenter the United States with up to $100 in Cuban-origin goods
for personal use.  Havana Club rum and cigars are the most popular items brought back.
Because of the Cuban embargo, however, HCI's "Havana Club" rum has never been sold in
the United States.  HCI intends to export its rum to th e United States as soon as legally possible.  HCI
anticipates using its current marketing strategy of emphasizing the quality and character of its rum
based primarily upon its Cuban origin.  The label on HCI's "Havana Club" rum portrays the city ofHavana and contains the phrase "El Ron de Cuba " ("The Rum of Cuba").  HCI's advertising also
stresses the product's Cuban origin.
Beginning in 1995, Bacardi-Martini's predecesso r-in-interest, Galleon S.A., produced rum in
the Bahamas bearing the "Havana Club" name, and distributed sixteen cases of this rum in the United
States.  From May 1996 to August 1996, Bacardi distributed an additional 906 cases of "Havana
Club" rum in the United States.
The pending lawsuit .  In December 1996, HCH and HCI filed the instant action to enjoin
Bacardi from using the "Havana Club" trademark, alleging violations of sections 32 and 43(a) of the
Trademark Act of 1946 ("Lanham Act"), as amended, 15 U.S.C. §§ 1114, 1125(a).  Among Bacardi's
defenses was a claim that OFAC's specific license to HCH, authorizing the assignments of the U.S.trademark, was invalid because HCH obtained the mark by fraud.  In March 1997, the District Court
ruled that Bacardi lacked standing to challenge OFAC's specific license to HCH and that OFAC's
decision to grant the specific license was unreviewable.  See Havana Club Holding, S.A.  v.  Galleon,
S.A., 961 F .  Supp. 498 (S.D.N.Y. 1997) (" Havana Club I ").
In August 1997, the District Court ruled that HCH had no rights to the "Havana Club"
trademark because the specific license to assign the mark to HCH had been nullified by OFAC's
revocation of the specific license and because the CACR's general license authority under 31 C.F.R. §
515.527(a) did not authorize the assignment .  See  Havana Club Holding, S.A. v. Galleon, S.A. , 974 F.IP/C/W/139/Add.2
Page 30
Supp. 302, 306-07 (S.D.N.Y. 1997) (" Havana Club II ").3  After rejecting the Appellants' claim of
rights to the "Havana Club" mark , the Court granted the Appellants' motion to amend their Complaint
to assert rights to the "Havana Club" trade name  under sections 44(g) & 44(h) of the Lanham Act, as
amended, 15 U.S.C. § 1126(g), (h), and Chapter III of the General Inter-American Convention for
Trade Mark and Commercial Protection, Feb. 20, 1929, 46 Stat. 2907, 2926-30 ("IAC") .  Both Cuba
and the United States are signatories to the IAC. SeeIAC, 46 Stat. at 2907 .  The District Court
subsequently dismissed several counterclaims .  SeeHavana Club Holding, S.A. v. Galleon, S.A. , No.
96 CIV. 9655(SAS), 1998 WL 150983 (S.D.N.Y. Mar. 31, 1998) (" Havana Club III ").
During the bench trial, the District Court ru led that HCH, a Luxembourg corporation, could
not claim rights to trade name protection under the IAC because Luxembourg was not a party to the
IAC.  See Havana Club Holding, S.A. v. Galleon, S.A. , 62 F. Supp. 2d 1085, 1089 (S.D.N.Y. 1999)
("Havana Club IV ").  After trial, the District Court ruled that it was prohibited from enforcing HCI's
trade name rights under the IAC by section 211( b) of the Omnibus Consolidated and Emergency
Supplemental Appropriations Act, 1999, Pub. L. No. 105-277, § 211(b), 112 Stat. 2681, 2681-88
(1998) ("Omnibus Act"), which Congress enacted on October 21, 1998.  See Havana Club IV , 62 F.
Supp. 2d at 1091-95.
The District Court also ruled that HCI lacked standing to assert its claim under section 43(a)
of the Lanham Act.  HCI had alleged that Bacardi's use of the mark "Havana Club" and its label--
which features a sketch of Malecon, a seafront boulevard in Havana--falsely designated Cuba as the
place of origin of Bacardi's rum, when in fact Bacardi produced it in the Bahamas.  The District Courtheld that HCI had no standing to pursue this cl aim, because the Cuban embargo prevented HCI from
selling its rum in the United States, and thereby from suffering commercial injury because of
Bacardi's actions.  The District Court added, "Any competitive injury plaintiffs will suffer based upon
their intent to enter the U.S. market once the embargo is lifted is simply too remote and uncertain to
provide them with standing." Havana Club IV , 62 F.  Supp. 2d at 1099.  An amended judgment was
entered on June 28, 1999.
Discussion
I. Trademark
HCH contends that Bacardi infringed its rights to the "Havana Club" trademark registered in
the United States.  The basic issue on the trademark claim is whether HCH has any rights to the mark.
Although HCH purported to acquire rights by assignments from Cubaexport to HR&L and from
HR&L to HCH, HCH recognizes that to have enforceable rights in the United States, it must find
authority for the assignment somewhere in United States law, because in the absence of such
authority, the Cuban embargo renders null and void the transfer of trademark registrations in which a
Cuban national or entity has an interest.4
                                                     
3 Although acknowledging that the nullification of the assignment caused the rights in the mark to
revert to Cubaexport, the assignor, the District Court did not cancel the United States registration for "Havana
Club" because Cubaexport was not a party to the litigation. See id. at 311-12.
4 Unless authorized, the Cuban embargo prohibits, with respect to property in which a Cuban national
or entity has an interest, (1) "[a]11 dealings in, including, without limitation, transfers . . . of, any property . . . orevidences of ownership of property by any person subject to the jurisdiction of the United States"; (2) "[a]lltransfers outside the United States with regard to any property or property interest subject to the jurisdiction of
the United States"; and (3) "[a]ny transaction for the pur pose or which has the effect of evading or avoiding any
of the prohibitions" above. 31 C.F.R. § 515.201(b), (c).
These prohibitions apply where a Cuban national or entity has an interest of "any nature whatsover,
direct or indirect," in the property transferred. Id. § 515.312. The embargo defines "property" to include
trademarks, see id. § 515.311, and specifically defines "transfer" to include "the making, execution, or delivery
of any assignment," id. § 515.310. Any transfer of property in violation of the Cuban embargo "is null and void
and shall not be the basis for the assertion or recognition of any interest in or right, remedy, power or privilege
with respect to such property." Id. § 515.203(a).IP/C/W/139/Add.2
Page 31
As authority for the assignments, HCH's Compla int in this litigation initially invoked the
"specific" license issued by OFAC in November 1995, which "licensed" the assignments.  However,
after OFAC revoked the specific license in 1997, HCH has relied on the "general" licensing authority
in 31 C.F.R. § 515.527.5  Section 515.527(a) states:
Transactions related to  the registration and renewal in the United
States Patent and Trademark Office ... in which ... a Cuban national
has an interest are authorized.
31 C.F.R. § 515.527(a)(1) (emphasis added).  This provision was added in 1995, more than a year
after HCH became the assignee of the "Havana Club" trademark.  See Certain Transactions With
Respect To United States Intellectual Property, 60 Fed. Reg. 54,194, 54,196 (1995).  HCH contends
that, even though OFAC revoked the specific license to assign the "Havana Club" trademark, theassignments remain valid under the general authorization of section 515.527(a)(1) as transactions
"related to" the registration and renewal of a trademark.  HCH also contends that if section
515.527(a)(1) is not construed to authorize the assignments, HCH will be denied treaty rights
protected by the IAC.  We disagree with both arguments.
(a) Whether the CACR prohibit the assignments .  Before considering the meaning of section
515.527(a)(1), we encounter an express prohibition against HCH's claim set forth earlier in Subpart E
of Part 515,
6  which contains section 515.527(a)(1).  Section 515.502(a) provides:
No ... authorization contained in this part . . . shall be deemed to
authorize or validate any transaction effected prior  to the issuance
thereof, unless such ... authorization specifically so provides.
31 C.F.R. § 515.502(a) (emphasis added).  The assignments for which HCH claims to find
authorization in section 515.527 were "effected" in 1994, prior to the issuance of section 515.527 in
1995, see 60 Fed. Reg. 54,194, 54,196 (1995) (effective Oct. 17, 1995), and section 515.527(a)(1)
does not "specifically so provide[]" for authorization of transactions that occurred prior to its issuance.
Therefore, whether or not section 515.527(a)(1) might be interpreted to authorize assignments
occurring after  its effective date, this provision cannot authorize the 1994 assignments of the "Havana
Club" trademark to HCH.7
Even if section 515.502(a) were not an obstacle, we would not accept HCH's argument that
section 515.527(a)(1) should be interpreted to authorize the 1994 assignments as transactions "relatedto" a trademark renewal.  Although phrases like "related to" are properly given a broad meaning in
some statutes and regulations, see, e.g., Shaw v. Delta Air Lines, Inc. , 463 U.S. 85, 96-97 (1983)
(determining that a state law "relates to" employee benefit plans for purposes of ERISA preemption
under 29 U.S.C. § 1144(a)), the context in which the phrase is used illuminates its meaning.  In Shaw ,
the ERISA context and the congressional purpose to achieve broad preemption warranted a broad
reading of the phrase.  By contrast, the context here precludes a broad reading.  Section 515.527(a)(1)
                                                     
5 The Appellants' initial brief in this Court implies some reliance on the special license by asserting that
"cancellation of HCH's interest in the Registration" violates treaty rights under the IAC, see Brief for Appellants
at 55, suggesting that the cancellation, if unlawful, leaves the special license in force. We consider the IAC issue
below. However, the reply brief unequivocally asserts, "The core issue is whether the CACR general license
covers the transfer . . . ." Reply Brief for Appellants at 26.
6 The CACR constitute Part 515 of Chapter V (Office of Foreign Assets Control, Department of the
Treasury) in Subtitle B of Title 31 of the Code of Federal Regulations.
7 If HCH were to meet the obstacle of section 515.502(a) by obtaining assignments of the "Havana
Club" trademark from Cubaexport now (after issuance of section 515.527(a)(1)), it would encounter the further
obstacle of section 211(a)(1) of the Omnibus Act, discussed below, which, without any issue as to retroactivity,
would prohibit future assignments of confiscated trademarks without the consent of the original owner.IP/C/W/139/Add.2
Page 32
creates an exception to the broad prohibitions of the Cuban embargo.  If every assignment of a
trademark, for which the registration was subsequently renewed, were considered a transaction
"related to" trademark renewal, the exception created by section 515.527(a)(1) would swallow much
of the general rule of the Cuban embargo prohibiting transfers of trademarks.
Even if the text of section 515.527(a)(1) arguably applied to the assignments at issue, OFAC, theagency that promulgated the provision and that administers the Cuban embargo, interprets section
515.527 not to authorize assignments.  R.  Richar d Newcomb, Director of OFAC, stated in a 1996
letter to Appellee's counsel that section 515.527
allows only for the registration and renewal of intellectual property; § 515.527 does not
convey to the registrant the authority to assign the registrant's interest in a patent, trademark,
or copyright registered in the United States to another person.  Such an assignment wouldrequire authorization by OFAC in the form of  a specific license.... In the absence of OFAC
authorization, the assignment of rights to the U.S.-registered trademark would be null and
void.
Under this interpretation, only Cubae xport, the original registrant of the United States registration for
the "Havana Club" trademark, has the authority to renew the "Havana Club" trademark, and a specific
license is required in order to assign it.
8
Article 11 of the IAC . HCH contends that failure to recognize its rights as assignee of the
United States registration for the "Havana Club" trademark would nullify rights guaranteed by Article11 of the IAC. Article 11 provides:
The transfer of the ownership of a registered or deposited mark in the
country of its original registration shall be effective and shall be
recognized in the other Contracting States, provided that reliableproof be furnished that such transfer has been executed and registered
in accordance with the internal law of the State in which such transfer
took place.  Such transfer shall be recorded in accordance with the
legislation of the country in which it is to be effective.
46 Stat.  at 2922-24.  Since the "Havana Club" mark registered in the United States was originally
registered in Cuba and was transferred in accordance with Cuban law, Article 11 purports to assure
that the transfer to HCH will be recognized in the United States.  The disputed issue is whether theCuban embargo has abrogated the rights that Section 11 of the IAC would otherwise protect.
A "treaty will not be deemed to have been abrogated or modified by a later statute unless such
purpose  on the part of Congress has been clearly expressed." Cook v. United States , 288 U.S. 102,
120 (1933) (emphasis added); seeTrans World Airlines, Inc. v. Franklin Mint Corp. , 466 U.S. 243,
252 (1984); Chew Heong v. United States , 112 U.S. 536, 539-40 (1884).  Although neither the CACR
nor the LIBERTAD Act refers expressly to the IAC, the question of abrogation does not turn on
whether the IAC has been expressly identified for abrogation.  Congress is not required to investigate
the array of international agreements that arguably provide some protection that it wishes to annul and
then assemble a check-list reciting each one.  What is required is a clear expression by Congress of apurpose to override protection that a treaty would otherwise provide.
With respect to the Cuban embargo, the purpose of Congress could not be more clear.
Congress wished to prevent any Cuban national or ent ity from attracting hard currency into Cuba by
selling, assigning, or otherwise transferring righ ts subject to United States jurisdiction.  The CACR
                                                     
8 The Appellants inform us that HCH and HR&L have applied to OFAC for a second specific license,
following revocation of the first specific license. See Reply Brief for Appellants at 31.IP/C/W/139/Add.2
Page 33
make this clear, and the LIBERTAD Act, by codifying the CACR, provides unmistakable evidence of
congressional purpose.  We must therefore accord pr imacy to the prohibition of the CACR that bars a
Cuban national or entity from transferring a United States trademark.
HCH contends that since the "relates to" phrase of section 515.527(a)(1) could be  interpreted
to authorize the assignments at issue, the interpretation favoring HCH should be adopted in order to
avoid a conflict with section 11 of the IAC.  We disagr ee.  First, that argument fails to reckon with the
absolute prohibition of section 515.502(a), which prevents section 515.527(a)(1) from validating
assignments that were made before the issuance of the latter provision.  Second, wholly apart from
section 515.502(a), section 515.527(a)(1) cannot be interpreted as HCH contends without
substantially undermining the CACR's general prohibi tions, as applied to United States trademarks.
Thus, we would reject HCH's interpretation even if we did not have the benefit of OFAC'sinterpretation.  Third, even if the interpretation of section 515.527(a)(1) were fairly debatable, the
interpretation of the provision given by the agency charged with enforcing the embargo is normally
controlling.  See Auer v. Robbins , 519 U.S. 452, 461 (1997) (agency interpretation of its own
regulation is "controlling unless plainly erroneous or inconsistent with the regulation") (internal
quotation marks omitted); cf. Paradissiotis v. Rubin , 171 F.3d 983, 987 (5th Cir. 1999) (noting that
OFAC's application of its own regulations deserves greater deference than under Chevron U.S.A. Inc.
v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (1984)); Consarc Corp. v. Iraqi Ministry ,
27 F.3d 695, 702 (D.C. Cir. 1994) (same).  Whether or  not deference to an administrative agency's
interpretation of its own provisions would override treaty provisions in other contexts, we have no
doubt that Congress, whose purpose we are ultimately  obliged to follow on this issue, expects that
OFAC's restrictive interpretation of section 515.527(a)(1) will override any conflicting treaty
protection.
Moreover, in 1996, after OFAC promulgated se ction 515.527, Congress clearly expressed its
intent to prohibit transfers of property, including intellectual property, confiscated by the Cubangovernment by enacting the LIBERTAD Act.  Finding that the Castro government was "offering
foreign investors the opportunity to purchase an equity interest in, manage, or enter into joint
ventures" involving confiscated property in order to obtain "badly needed financial benefit, including
hard currency, oil, and productive investment and expertise," 22 U.S.C. § 6081(5), (6), Congress
established a civil remedy for any United States national owning a claim to "property" confiscated by
the Cuban government after January 1, 1959, against "any person" who "traffics" in such property, id.
§ 6082(a)(1)(A), and broadly defined "property" specifically to include "trademarks," id. §
6023(12)(A).  By doing so, Congress intended "to create a 'chilling effect' that will deny the current
Cuban regime venture capital, discourage third-country nationals  from seeking to profit from illegally
confiscated property, and help preserve such property until such time as the rightful owners can
successfully assert their claim," H. Rep. No. 104-202, at 25 (1996), reprinted in  1996 U.S.C.C.A.N.
527, 530 (emphasis added).  In other words, Congress sought to discourage business arrangementslike Cubaexport's joint venture with Pernod, the vent ure that led to both the creation of HCH and the
assignments of a trademark confiscated by the Castro regime from JASA.
9
                                                     
9 We need not determine whether JASA abandoned the "Havana Club" mark by not renewing that mark
with the USPTO after the United States imposed the Cuban embargo. We note, however, that in 1962, two yearsafter Cuba expropriated JASA's assets, Congress amended the Lanham Act to allow applications for renewingregistered trademarks to show that "any nonuse" of the mark "is due to special circumstances which excuse such
nonuse and it is not due to any intention to abandon the mark." Act of Oct. 9, 1962, Pub. L. No. 87-772, § 5, 76
Stat. 769, 770.IP/C/W/139/Add.2
Page 34
By invoking the 1996 LIBERTAD Act as evidence of Congress's purpose to prohibit the
assignments we do not retroactively apply that Act to prohibit the assignments in this case.10   The
1994 assignments are unauthorized because OFAC revoked the specific license for them and the
alleged source of a general licensing authority for them is unavailing.  The LIBERTAD Act is simply
evidence of congressional purpose that the result we reach should prevail over any contraryarguments, including those based on the IAC.
In the same vein, we note that Congress has recently explicitly spoken to restrict the scope of
section 515.527.  Section 211(a)(1) of the Omnibus Act provides:
Notwithstanding any other provision of law, no transaction or
payment shall be authorized or approved pursuant to section 515.527of title 31, Code of Federal Regulations, as in effect on September 9,
1998, with respect to a mark, trade name, or commercial name that is
the same as or substantially similar to a mark, trade name, or
commercial name that was used in connection with a business or
assets that were confiscated unless the original owner of the mark,trade name, or commercial name, or the bona fide
successor-in-interest has expressly consented.
112 Stat.  at 2681-88.  Section 515.527 has been amended to include this restriction.  See31 C.F.R. §
515.527(a)(2).
As with the LIBERTAD Act, we cite section 211(a)(1), not to apply its terms to invalidate the
1994 assignments (an arguably retroactive application), but only to indicate that interpreting section
515.527(a)(1) not to authorize the assignments fully vindicates Congress's purpose not to permit
assignment of confiscated trademarks without the consent of the original owner.  See West Virginia
University Hospitals, Inc. v. Casey , 499 U.S. 83, 100 (1991) ("Where a statutory term presented to us
for the first time is ambiguous, we construe it to contain that permissible meaning which fits most
logically and comfortably into the body of both previously and subsequently  enacted law.") (emphasis
added).
For all of these reasons, HCH has no enforceable rights to the "Havana Club" trademark.
II. Trade Name Protection Under the Inter-American Convention
HCI contends that Bacardi infringed its rights under the IAC to protection of the "Havana
Club" trade name.  The IAC provides that any manufacturer "domiciled or established" in a signatory
country that uses a particular trade name or commercial name may enjoin the use of that name in
another signatory country that is "identical with or deceptively similar to" its trade name.  IAC, art.18, 46 Stat. at 2928-30.  A trade or commercial name need not be a registered to be protected.  See
IAC, art.  14, 46 Stat.  at 2926.
Rights to trade names and commercial names arising under treaties may be asserted under
section 44(b) of the Lanham Act, which provides:
Any person whose country of origin is a party to any convention or
treaty relating to trademarks, trade or commercial names, or the
repression of unfair competition, to which the United States is also a
                                                     
10 Although a statute could be prospectively applied to bar an injunctive remedy with respect to a
previously acquired property, it would arguably encounter retroactivity objections if applied, of its own force, to
invalidate a prior acquisition. See generally  Landgraf v. USI Film Products , 511 U.S. 244 (1994).IP/C/W/139/Add.2
Page 35
party . . . shall be entitled to the benefits of this section under the
conditions expressed herein to the extent necessary to give effect to
any provision of such convention, treaty or reciprocal law . . . .
15 U.S.C.  § 1126(b). Section 44(g) of the Lanham Act adds, "Trade names or commercial names of
persons described in subsection (b) of this section shall be protected without the obligation of filing orregistration whether or not they form parts of marks." Id.  § 1126(g).  The terms "trade name" and
"commercial name" are defined as "any name used by a person to identify his or her business or
vocation." Id. § 1127.
On October 21, 1998, before the bench trial in this case, Congress passed section 211 of the
Omnibus Act, which provides in pertinent part:
(b) No U.S. court shall recognize, enforce or otherwise
validate any assertion of treaty rights by a designated national or its
successor-in-interest under sections 44 (b) or (e) of the Trademark
Act of 1946 (15 U.S.C. 1126 (b) or (e)) for a mark, trade name, or
commercial name that is the same as or substantially similar to amark, trade name, or commercial name that was used in connection
with a business or assets that were confiscated unless the original
owner of such mark, trade name, or commercial name, or the bona
fide successor-in-interest has expressly consented.
(c) The Secretary of the Treasury shall promulgate such rules
and regulations as are necessary to carry out the provisions of this
section.
(d) In this section:
(1) The term "designated national" has the meaning given
such term in section 515.305 of title 31, Code of Federal Regulations,as in effect on September 9, 1998, and includes a national of any
foreign country who is a successor-in-interest to a designated
national.
(2) The term "confiscated" has the meaning given such term
in section 515.336 of title 31, Code of Federal Regulations, as in
effect on September 9, 1998.
112 Stat. at 2681-88.
Section 211(b) applies in this case.
11  This Court is a "U.S. court" under section 211(b).12 HCI
is a "designated national" under section 211(b) because HCI is organized under the laws of Cuba, is
                                                     
11 Congress may "amend substantive law in an appropriations statute, as long as it does so clearly."
Robertson v. Seattle Audubon Society , 503 U.S. 429, 440 (1992). The Appellants argue that this Court must
presume that Congress intended section 211(b) to expire  at the end of the 1999 fiscal year because it did not
clearly indicate its intent to permanently amend the law. We disagree. If Congress had intended section 211 toexpire at the end of the fiscal year, section 211(c), which directs the Secretary of Treasury to promulgate rules
and regulations to carry out its provisions, would have been superfluous.
12 It is unclear whether "U.S. court" in section 211(b) means only a federal court or any court in the United
States that would otherwise have concurrent jurisdic tion over Lanham Act claims, such as a state court, see
Berlitz Schools of Languages of Am erica, Inc. v. Everest House , 619 F.2d 211, 216 (2d Cir. 1980). The term
"U.S. court" closely resembles the term "court of the United States," which Congress has used to distinguishIP/C/W/139/Add.2
Page 36
domiciled in Cuba, and has its principal place of business in Cuba.  See31 C.F.R. § 515.305 (defining
"designated national" to mean "Cuba and any national thereof including any person who is a specially
designated national").
Applying section 211(b), the District Court rule d that it precluded HCI's assertion of treaty
rights under sections 44(b) or (e) of the Lanham Act and thereby precluded HCI's claims under the
IAC.  HCI disputes this ruling on several grounds.  HCI first argues that it does not need sections
44(b) and (e) of the Lanham Act to assert its rights under the IAC because upon ratification, the IAC
became law in the United States without the aid of additional legislation.  See Bacardi Corp. of
America v. Domenech , 311 U.S. 150, 161 (1940).  This argument presumes that when Congress
enacted section 44(b) of the Lanham Act, it intended to incorporate into law only those treaties that
were not self-executing at the time.
The original text of section 44(b) and the legislative history, however, suggest otherwise.
When enacted in 1946, section 44(b) of the Lanham Act specifically incorporated the treaty rights of
[p]ersons who are nationals of, domiciled in, or have a bona fide and
effective business or commercial establishment in any foreign
country, which is a party to (1) the International Convention for the
Protection of Industrial Property . . . or (2) the General Inter-
American Convention for Trade Mark and Commercial Protection
. . . or (3) any other convention or treaty relating to trade-marks, tradeor commercial names, or the repression of unfair competition to
which the United States is a party . . . .
Trademark Act of 1946, ch. 540, § 44(b), 60 Stat. 427, 442 (emphasis added).
13  Although the
Supreme Court had already ruled the IAC to be self-executing, see Bacardi Corp. , 311 U.S. at 161,
Congress specifically referred to the IAC in section 44(b) because Congress simply was not surewhether trademark treaties had acquired the force of law.  The Senate Report explained:
These conventions have been ratified, but it is a question whether
they are self-executing, and whether they do not need to be
implemented by appropriate legislation.
Industrialists in this country have been seriously handicapped in
securing protection in foreign countries due to our failure to carryout, by statute, our international obligations.
S. Rep. No. 79-1333 (1946), reprinted in  1946 U.S. Code & Cong. Serv. 1274, 1276.  Accordingly,
Congress intended the Lanham Act "[t]o carry out by statute  our international commitments to the end
that American traders in foreign countries may secure the protection to their marks to which they are
                                                                                                                                                                    
federal courts from other forums, especially in statutes  that expressly identify both federal and state courts. See,
e.g., 22 U.S.C. § 2459(a) ("no court of the United States, any State, the District of Columbia, or any territory or
possession of the United States" may deprive a cultural or educational institution of any work of art of otherobject imported into the United States for exhibition if determined by the President to have cultural
significance). Because the Cuban embargo significantly implicates United States foreign policy, however, it is
unlikely that Congress intended to preclude the ability of plaintiffs to assert in federal court rights derived fromproperty confiscated by Cuba, but preserve their ability to do so in state court. Because this Court is clearly a"U.S. court," we need not decide whether section 211(b) also precludes HCI from asserting its claims under theIAC in state court.
13 In 1962, Congress amended section 44(b) to exclude the references to the two specific treaties, see §
20, 76 Stat. at 774, presumably in an effort to "revis[e] the language to a more understandable form," S. Rep.
No. 87-2107 (1962), reprinted in  1962 U.S.C.C.A.N. 2844, 2851.IP/C/W/139/Add.2
Page 37
entitled." Id.(emphasis added).  Indeed, referring specifically to "inter-American conventions,"
Congress aimed to eliminate "these sources of friction with our Latin-American friends" and
"facilitate mutual trade in this hemisphere" by ensuring the protection of their trademark rights in the
United States. Id14.  Therefore, HCI must assert its rights under the IAC pursuant to section 44(b) of
the Lanham Act.
Second, HCI argues that, because HCI's rights  to the "Havana Club" trade name existed
before Congress enacted section 211(b), the District Court improperly applied section 211(b)
retroactively.  To determine whether section 211(b) may apply retroactively, we would normally first
inquire "whether Congress has expressly prescribed the statute's proper reach." Landgraf v. USI Film
Products , 511 U.S. 244, 280 (1994).  Since section 211 does not clearly indicate that it should be
applied retroactively, the traditional presumption against retroactivity would likely apply.  See id.
In this case, however, we can apply section 211(b) to bar relief on HCI's trade name claim
because when an "intervening statute authorizes or affects the propriety of prospective relief ,
application of the new provision is not retroactive." Id.at 273 (emphasis added); see American Steel
Foundries v. Tri-City Central Trades Council , 257 U.S. 184, 201 (1921) (applying Clayton Act to
injunction entered before its enactment because "relief by injunction operates in futuro  and the right to
it must be determined as of the time of the hearing"); Duplex Printing Press Co. v. Deering , 254 U.S.
443, 464 (1921) (same); Salute v. Stratford Greens Garden Apartments , 136 F.3d 293, 298 n.2 (2d
Cir. 1998) ("When an intervening repeal of a statute affects the propriety of prospective relief, a court
should apply the law in effect at the time it renders its decision.") .  Because HCI seeks only injunctive
relief, this Court can properly apply section 211(b) .
Third, HCI argues that section 211(b) does not apply when the trade name at issue has been
abandoned .  Section 211(b) precludes enforcement of righ ts under section 44(b) for a trade name "that
was used in connection with a business or assets that were confiscated unless the original owner ofsuch mark, trade name, or commercial name, or the bona fide successor-in-interest has expressly
consented." 112 Stat. at 2681-88 .  By "confiscated," section 211(b) refers to the nationalization,
expropriation, or other seizure of property by the Cuban Government on or after January 1, 1959.
See31 C.F.R. § 515.336 .  It is undisputed that JASA used the "Havana Club" name until the Cuban
government expropriated the business in 1960 and has not expressly consented to HCI's use of the
"Havana Club" name .
Nevertheless, HCI argues that JASA had aba ndoned its rights to the "Havana Club" trade
name long before HCI started to use the name (as "Havana Club International") in 1994 .  Despite the
lack of an explicit abandonment defense, HCI urges this Court to construe section 211(b) to include
an abandonment exception because (1) interpreting section 211(b) otherwise would abrogate the IAC,
and (2) abandonment, as a defense that arises out of common law, must not be presumed to beabrogated by section 211(b) absent express indication of Congress's intent to do so .  However, we will
not create an abandonment exception to section 211(b) .  Section 211(b) requires only that a trade
name "was used" in connection with a confiscated business or asset, not that the trade name continues
to be used .  See United States v. Wilson , 503 U.S. 329, 333 (1992) ("Congress' use of a verb tense is
significant in construing statutes.") .  Moreover, Congress knows how to enact an abandonment
defense; it has already provided conditions under which any trademark, service mark, collective mark,
or certification mark shall be deemed abandoned .  See 15 U.S.C. § 1127 .  It is not likely that Congress
                                                     
14 Cf. Vanity Fair Mills, Inc. v. T. Eaton Co. , 234 F.2d 633, 641 (2d Cir. 1956)(noting that in trademark
dispute involving sales of allegedly infringing goods in Canada, the only rights plaintiff could assert under theInternational Convention for the Protection of Industrial Property " other than through  § 44 of the Lanham Act . .
. are derived from . . . Canadian law, and not from the fact that the International Convention may be a self-
executing treaty which is a part of the law of this country")(emphasis added).IP/C/W/139/Add.2
Page 38
wished to disadvantage a company that understandably ceased to use its trade name after the
confiscation of its business .
Fourth, HCI argues that it should be allowed to prove that the "Havana Club" trade name was
never confiscated .  Section 211(d)(2), incorporating by reference 31 C.F.R. § 515.336, defines
"confiscated," in pertinent part, as property nationalized, expropriated, or otherwise seized by the
Cuban government on or after January 1, 1959, "[w]ithout the property having been returned or
adequate and effective compensation provided," § 515.336(a)(1) .  See 112 Stat. at 2681-88 .  The
District Court found that "all of JASA's assets were taken and that it received no compensation."
Havana Club Holding IV , 62 F .  Supp. 2d at 1095 n.8.
HCI argues that it had no opportunity to conduct discovery to determine whether JASA had a
positive net value at the time of expropriation, because Congress did not enact section 211 until well
into the proceedings, and because the District Court implicitly denied its motion to conduct discovery
on the matter by applying section 211.
We disagree with HCI's premise that no compensation is "adequate and effective"
compensation under section 515.336(a)(1) where the confiscated business allegedly had no positive
net value at the time of expropriation .  The embargo's definition of confiscated property contemplates
only three ways in which property expropriated by Cuba can avoid becoming classified as
"confiscated." Cuba can either return the property, provide "adequate and effective compensation," or
settle the property claim pursuant to an international claims settlement agreement or other mutuallyaccepted settlement procedure .  See 31 C.F.R. § 515.336(a) .  Where Cuba has not returned JASA's
property, not made even a gesture toward compensation, and not settled the claim, the confiscation
inquiry ends .
III. False Advertising
HCI disputes the District Court's finding that it  does not have standing to assert its "false
advertising" claim .  Section 43(a) of the Lanham Act provides:
Any person who, on or in connecti on with any goods or services, or
any container for goods, uses in commerce any word, term, name,
symbol, or device, or any combination thereof, or any falsedesignation of origin, false or misleading description of fact, or false
or misleading representation of fact, which -
(A) is likely to cause confusion, or to cause mistake, or to
deceive as to the affiliation, connection, or association of such person
with another person, or as to the origin, sponsorship, or approval ofhis or her goods, services, or commercial activities by another person
...
shall be liable in a civil action by any person who believes that he or
she is likely to be damaged by such act .
15 U.S.C. § 1125(a)(1) .  To establish standing under section 43(a), the plaintiff must
demonstrate a "reasonable interest to be protected" against the
advertiser's false or misleading claims, and a "reasonable basis" for
believing that this interest is likely to be damaged by the false or
misleading advertising .  The "reasonable basis" prong embodies aIP/C/W/139/Add.2
Page 39
requirement that the plaintiff show both likely injury and a causal
nexus to the false advertising.
Ortho Pharmaceutical Corp. v. Cosprophar, Inc. , 32 F.3d 690, 694 (2d Cir. 1994) (citations omitted) .
"Although a section 43 plaintiff need not be a direct competitor, it is apparent that, at a minimum,
standing to bring a section 43 claim requires the potential for a commercial or competitive injury."Berni v. International Gourmet Restaurants of America, Inc. , 838 F.2d 642, 648 (2d Cir. 1988)
(citations omitted); see, e.g., National Lampoon, Inc. v. American Broadcasting Cos. , 376 F .  Supp.
733, 746-47 (S.D.N.Y.) (publisher of National Lam poon magazine has standing to sue television
network's use of part of its name on two television programs, in part because plaintiff "has begun
production of programs for closed-circuit television and is negotiating for production of a special
program" to sell to one of the television networks), aff'd, 497 F.2d 1343 (2d Cir. 1974).
This Court reviews de novo  the District Court's determination of standing .  See  Devlin v.
Transportation Communications International Union , 175 F.3d 121, 131 (2d Cir. 1999) .  Contrary to
the case law on standing under section 43(a), HCI first argues that to obtain standing, it must
demonstrate only that Bacardi has falsely indicated the origin of its "Havana Club" rum as Havana,
when in fact Bacardi produced its rum in the Bahamas .  HCI points to the original language of section
43(a) of the Lanham Act, which provided:
Any person who shall affix, apply, or annex, or use in connection
with any goods or services, or any container or containers for goods,
a false designation of origin . . . shall be liable to a civil action by anyperson doing business in the locality falsely indicated as that of
origin or in the region in which said locality is situated, or by any
person who believes that he is or is likely to be damaged by the use
of any such false description or representation.
60 Stat. at 441 (1946) (emphasis added) .  HCI argues that, by using the disjunctive "or," Congress
contemplated that a plaintiff could sue under section 43(a) if it did business in the locality falsely
designated as the origin of a particular good, regardless of whether that plaintiff was likely to be
damaged by the false representation .  Although Congress amended section 43(a) in 1988, the Senate
Report stated that standing "should continue to be decided on a case-by-case basis, and that the
amendments . . . made to the legislation with respect to [this issue] should not be regarded as either
limiting or extending applicable decisional law." S. Rep. No. 100-515, at 41 (1988), reprinted in  1988
U.S.C.C.A.N. 5577, 5604 .  Therefore, HCI argues, it has standing under the current version of section
43(a), because HCI does business "in the locality falsely indicated as that of origin" by Bacardi,
namely, Havana .
We disagree .  The Senate Report indicates that Congress intended not to alter the then
"applicable decisional law" under section 43(a) .  Although numerous cases prior to 1988 recognized
that standing under section 43(a) required demonstrable proof that a plaintiff would be likely to suffer
damage as a result of false advertising, see, e.g., Johnson & Johnson v. Carter-Wallace, Inc. , 631 F.2d
186, 190 (2d Cir. 1980) ("[T]he likelihood of injury and causation will not be presumed, but must be
demonstrated."), we have found no case decided before 1988 that recognized standing under section
43(a) based on HCI's interpretation of the pre-1988 version of section 43(a) .  Since no such case
existed, Congress cannot be deemed to have left unaltered, and by implication recognized, HCI's
theory of standing when it amended section 43(a) in 1988 .  The parties in the cases relied upon by
HCI could have demonstrated likelihood of injury because they competed with each other in the same
geographic area .  See  Black Hills Jewelry Manufacturing Co. v. Gold Rush, Inc. , 633 F.2d 746, 748
(8th Cir. 1980) (the Dakotas); Scotch Whiskey Association v. Barton Distilling Co. , 489 F.2d 809, 811
(7th Cir. 1973) (Panama, including Canal Zone).IP/C/W/139/Add.2
Page 40
Second, to establish the likelihood of commercial  injury for the purposes of standing, HCI
argues that Bacardi's use of the "Havana Club" name will adversely affect HCI's current and future
sales of its rum to U.S. visitors to Cuba .  The fact that HCI sells to Americans traveling in Cuba,
however, does not necessarily demonstrate the likeli hood that the distribution of Bacardi's "Havana
Club" rum in the United States will hurt HCI sales to those persons in Cuba .  Although HCI presented
consumer surveys that reported that "33% of Americans think that it is legal to sell rum from Cuba in
the United States and 9% do not know whether it is legal or illegal," the District Court noted that "it is
intuitively doubtful that these finding[s] would appl y to U.S. travellers authorized to visit Cuba."
Havana Club Holding IV , 62 F. Supp. 2d at 1100 n.11 .  We will not disturb this finding on appeal .  A
district court has broad discretion concerning the weight of particular evidence, including consumer
surveys such as those proffered here, see Schering v. Pfizer, Inc. , 189 F.3d 218, 230 (2d Cir. 1999);
Grotrian, Helfferich, Schulz, Th. Steinweg Nachf. v. Steinway & Sons , 523 F.2d 1331, 1341 (2d Cir.
1975), and its findings of fact are reviewed for clear error .  In this case, the plaintiffs' consumer
surveys drew their sample from across the United States, without attempting to control for any
likelihood that the participants would travel to Cuba .  Under such circumstances, the District Court's
finding that these surveys did not show consumer co nfusion among the relevant class of travellers was
not clearly erroneous .
HCI further argues that this Court must presume harm because Bacardi intentionally copied
the "Havana Club" label, citing Paddington Corp. v. Attiki Importers & Distributors, Inc. , 996 F.2d
577, 586-87 (2d Cir. 1993) ("Where a second-comer acts in bad faith and intentionally copies a
trademark or trade dress, a presumption arises that the copier has succeeded in causing confusion.") .
However, Paddington  and the other cases HCI cites are inapposite because they involve trademark
claims, not false advertising claims .
Third, HCI argues that the District Court erred in finding HCI's ability to enter the U.S.
market to be too remote at this point to confer standing .  Although this Court has conferred standing
for section 43(a) claims based on a showing of potential  commercial injury, not all potential
commercial injuries are sufficient to confer standing .  See , e.g., PDK Labs, Inc. v. Friedlander , 103
F.3d 1105, 1112 (2d Cir. 1997) (hopes of holder of pa tent for weight loss method, who had marketed
his product only to potential investors, to obtain FDA approval and then sell product to public too
remote to confer standing to challenge defendant's advertising).
HCI characterizes its injuries as (1) the "lost ability to use the HAVANA CLUB name in the
U.S. through Bacardi's accumulation of rights-by-use," (2) "loss of the key selling points in the U.S.
of being the single source of both HAVANA CLUB  rum and Cuban-origin rum," and (3) "damaged
reputation of Cuban-origin rum," or more generally, "the imminent loss of their prime selling
advantage." Brief for Appellants at 25 .  Even if HCI competes with Bacardi in markets elsewhere in
the world, standing requires that HCI demonstrate at least potential commercial injury in the UnitedStates, because Bacardi sells "Havana Club" rum only in the United States .  Because HCI's rum does
not now compete with Bacardi's rum in the United States, HCI's alleged injury amounts to the present
diminution in the speculative value of its sales of Cuban-origin rum in the United States market once
the United States government removes the obstacle of the Cuban embargo .
That obstacle is formidable .  The LIBERTAD Act not only codified the economic embargo of
Cuba, see22 U.S.C. § 6032(h), and strengthened its measures, see id. §§ 6033-6046, but also
authorized the President to take steps to suspend the embargo only after determining that a "transition
government in Cuba is in power," id. § 6064(a), and authorized the President to take steps to terminate
the embargo only after determining that "a democratically elected government in Cuba is in power,"IP/C/W/139/Add.2
Page 41
id. § 6064(c).15  At this time, the President has not determined that a "transition government," let alone
a "democratically elected" government, exists in Cuba.
HCI points to recent efforts in Congress to pass legislation to lift portions of the Cuban
embargo .  However, by conferring standing to HCI based on its own prediction of Congress's actions,
this Court would expand its authority well beyond any zone of twilight that might exist between
legislative and judicial authority .
HCI also seeks to support standing by relying on G. H. Mumm Champagne v. Eastern Wine
Corp. , 142 F.2d 499 (2d Cir. 1944), and section 10(g) of the TWEA .  Its arguments are unavailing.
Mumm  is a pre-Lanham Act action to enjoin trademark infringement and unfair competition, not a
false advertising action, and its facts are readily distinguishable from those in this case .  In Mumm , a
French company had registered the trademarks at issue and had contracted with a Delaware company
in 1938, prior to World War II, to sell only the French company's champagne.16 Seeid. at 500 .  After
upholding the Delaware company's entitlement to an injunction, the Court considered "the rather
barren question" whether to uphold its right to obtain an injunction on behalf of the French company,
"barren, because one injunction is as good as two." Id. at 502 .  Despite the lack of significance of an
injunction on behalf of the French company, we affi rmed it because the infringement risked lost sales
in the United States by the Delaware company, which might have resulted in lost profits by the French
company "provided sales lost by the Delaware compan y resulted in sales lost by it to that company."17
Id.  In the pending case, however, unlike the French company in Mumm , HCI has no United States
partner selling its product in the United States, and therefore no loss of profits derived indirectly fromlost sales in the United States will occur .
Nor does section 10(g) itself aid HCI .  Section 10(g) provides that "[a]ny enemy, or ally of
enemy, may institute and prosecute suits in equity ... to enjoin infringement of letters patent, trade-
mark, print, label, and copyrights in the United States owned or controlled by said enemy or ally ofenemy, in the same manner and to the extent that he would be entitled so to do if the United States
was not at war." 50 U.S.C. app. § 10(g) .  HCI does not contend that it may sue under section 10(g); in
the absence of a state of war with Cuba, HCI is not an "enemy."
18  Nevertheless, it argues that if its
                                                     
15 The Act defines "a transition government" in Cuba as one that has, among other things, legalized all
political activity, released all political prisoners, publicly committed to organizing and timely implementing"free and fair elections," ceased interference with Radi o Marti or Television Marti broadcasts, has publicly
committed to and demonstrated progress in establishing an independent judiciary and allowing for theestablishment of independent trade unions and independent social, economic, and political associations, and
"does not include Fidel Castro or Raul Castro." 22 U.S.C. § 6065(a).
16 In the contract, the French company agreed that it alone  would protect and enforce its trademark
rights in the United States. See id. at 502. Soon thereafter, as the district court in Mumm  explained, France was
"occupied by the armed forces of the German Reich . . . . Because of conditions due to the existing war, the[Delaware company] is, and has been, unable to communicate with the [French company]." G. H. Mumm
Champagne v. Eastern Wine Corp. , 52 F. Supp. 167, 169-70 (S.D.N.Y. 1943). Observing that the war had made
"impossible the performance of that promise" by the French company to protect its marks, we construed the
contract to authorize the Delaware company, under those circumstances, to seek to enjoin trademark
infringement on the French company's behalf. Mumm , 142 F.2d at 502. Although we referred to sections 10(g)
and (h) of the TWEA, 50 U.S.C. app. § 10(g), (h), we did so only to note that the TWEA did not preclude theDelaware company's limited authority under the contract to seek to enjoin trademark infringement on the French
company's behalf. See Mumm , 142 F.2d at 503.
17 Whether the possibility of lost profits by the French company might have resulted from loss of an
increase in its account with the Delaware company as the latter depleted its stock of pre-war importedchampagne, or from some other arrangement is not indicated in the Court's opinion.
18 Section 10(g) applies to "[a]ny enemy[] or ally of enemy." When Congress enacted the TWEA, six
months after the United States entered World War I, see Act of Oct. 6, 1917, ch. 106, 40 Stat. 411, "enemy" was
defined to include any resident or corporation of, or any foreign resident or corporation doing business in, any
nation "with which the United States is at war," § 2, 40 Stat. at 411. In 1933, Congress amended section 5(b) ofIP/C/W/139/Add.2
Page 42
section 43(a) claim is rejected for lack of standing, then section 10(g) could not be used by those
plaintiffs within the section's coverage .  The argument does not help HCI .
In the first place, section 10(g) would not apply to a false designation of origin claim under
section 43(a) of the Lanham Act .  A plaintiff need not "own[] or control[]" a registered trademark to
bring a section 43(a) action .  Any rum producer selling its product in the United States can obtain
standing to complain about Bacardi's allegedly false designation of origin as long as it can
demonstrate the commercial injury required for an action under section 43(a) .
Secondly, to the extent that HCI analogizes false designation claims to trademark
infringement claims, section 10(g) provides no escape from traditional standing requirements .
Section 10(g) permits a covered plaintiff to institute an infringement action "to the extent that hewould be entitled so to do if the United States wa s not at war." Thus, a section 10(g) plaintiff would
have to demonstrate the competitive injury necessary  to establish standing for an infringement action
in the absence of a wartime embargo .  Although an embargo might make it more difficult for such a
plaintiff to show such injury, a company in an em bargoed country still might, in some circumstances,
suffer sufficient risk of competitive harm, due to a defendant's infringement, to obtain an injunction .
See Mumm , 142 F.2d at 502 .  In such circumstances, section 10(g) would allow the plaintiff to go
forward with its action .  However, where, as here, the plaintiff cannot establish injury for a false
designation claim, comparison to section 10(g) affords it no refuge from traditional standing
requirements .
IV. Unfair Competition
Finally, HCI argues that it has standing to sue under section 44(h) of the Lanham Act for
unfair competition.  Section 44(h) provides
Any person designated in subsection (b) of this section as entitled to the benefits and subject
to the provisions of this chapter shall be entitled to effective protection against unfair
competition, and the remedies provided in this chapter for infringement of marks shall be
available so far as they may be appropriate in repressing acts of unfair competition.
15 U.S.C. § 1126(h).  Rights under Section 44(h) are co-extensive with treaty rights under section
44(b), including treaty rights "relating to . . . the repression of unfair competition."
19 Id. § 1126(b).
SeeToho Co. v. Sears, Roebuck & Co. , 645 F.2d 788, 792 (9th Cir. 1981) ("The grant in subsection (h)
of effective protection against unfair competition is tailored to the provisions of the unfair competition
treaties by subsection (b), which extends the benefits of section 44 only to the extent necessary to give
effect to the treaties."); American Auto. Ass'n v. Spiegel , 205 F.2d 771, 774 (2d Cir. 1953) ("Since
[section 44(h)] is limited to 'person designated in subsection (b)', we look to that subsection to learnits scope.").  HCI essentially argues that it must demonstrate less to obtain standing to assert its
                                                                                                                                                                    
the TWEA to authorize the President to act under section 5(b) "[d]uring time of war or during any other period
of national emergency decl ared by the President ," Act of Mar. 9, 1933, ch. 1, §2, § 5(b), 48 Stat. 1, 1 (emphasis
added). In 1977, Congress removed the President's author ity to act under section 5( b) in a declared national
emergency, see Act of Dec. 28, 1977, Pub. L. No. 95-223, § 101(a), 91 Stat. 1625, 1625, but still permitted the
President to continue to exercise the authorities conferred under section 5(b) "which were being exercised with
respect to a country on July 1, 1977, as a result of a national emergency declared by the President before such
date," § 101(b), 91 Stat. at 1625. This grandfather clause preserved the President's authority to maintain theCuban embargo under section 5(b). See Regan v. Wald , 468 U.S. 222, 232 (1984). In contrast, Congress has
never amended section 10(g) to authorize actions by persons or entities other than "[a]ny enemy, or ally ofenemy."
19 If the unfair competition claim were viable, it would not encounter the obstacle of section 211(b) of
the Omnibus Act, which does not expressly preclude a court from enforcing treaty rights under section 44(b)
relating to the repression of unfair competition.IP/C/W/139/Add.2
Page 43
section 44(h) claim than is required for its section 43(a) claim.  Article 21(c) of the IAC defines an act
of "unfair competition" to include "[t]he use of false indications of geographical origin or source of
goods, by words, symbols, or other means which tend in that respect to deceive the public in the
country in which these acts occur." 46 Stat. at 2932.  We note, however, that article 21 of the IAC
authorizes the prohibition of its specified acts of unfair competition "unless otherwise effectively dealtwith under the domestic laws of the Contracting St ates," 46 Stat. at 2932.  HC I's section 44(h) claim
amounts to little more than the re-assertion of its section 43(a) claim, because article 21(c) of the IAC
prohibits a subset of the conduct already effectivel y prohibited under American law by section 43(a).
We therefore conclude as a matter of law that HCI has failed to state a viable claim under section
44(h).
20
Conclusion
The judgment of the District Court is affirmed.
__________
                                                     
20 HCI also argues that it has an independent basis for standing under article 23 of the IAC. See 46 Stat.
at 2934 ("Repression of False Indications of Geographical Origin or Source"). HCI cannot rely on this provisionin asserting its section 44(h) claim, however, because the IAC does not treat rights under article 23 as rights
related to the repression of unfair competition. Because HCI never properly pled a cause of action invoking
article 23 of the IAC, we dec line to consider such a claim.