Section 211 of the 1998 U.S. Omnibus Consolidated and Emergency Supplemental Appropriations Act prohibits the enforcement of, and transactions related to, the registration and renewal of trademarks that are the same or substantially similar to those used in connection with a business that was confiscated by the Cuban government. Section 211 was designed to protect trademarks belonging to businesses confiscated by the Cuban government after the 1959 Communist revolution and was tacked on the 1998 appropriations legislation after heavy lobbying by Bacardi Co. Bacardi Co. had purchased the rights to use the trademark HAVANA CLUB in respect of rum in the United States from the Arechabala family who owned the Cuban distillery, seized by the Cuban government in 1960, which produced HAVANA CLUB rum in Cuba.

The Dispute Settlement Body of the World Trade Organization (WTO) adopted on February 1, 2002 the reports of the WTO Appellate Body and Panel and confirmed that the trademark provisions of Section 211 violate the TRIPs Agreement.

The European Union (EU) filed a complaint with the WTO on behalf of the French company, Pernod Ricard, arguing that Section 211 violated certain provisions in the TRIPs Agreement, such as the provisions that obligate WTO members to provide protection for trademarks, trade names, or commercial names and require that certain procedures for enforcing intellectual property rights covered by the Agreement are available to right holders in the member countries. The EU also argued that Section 211 violated provisions in the TRIPs Agreement that obligate members to treat nationals of other member countries no less favorably than their own nationals and require any advantage granted to nationals to be available for nationals of other members immediately and unconditionally.

Pernod Ricard together with a state-owned Cuban company, formed a joint venture, Havana Club Holding, which had previously acquired worldwide rights to the HAVANA CLUB trademark from the Cuban government. The HAVANA CLUB trademark was registered in 1976 in the United States and later transferred to Havana Club Holding. Pernod Ricard challenged Bacardi Co.'s claim to the HAVANA CLUB mark in the United States on the ground that the Arechabala family had abandoned the trademark by failing to renew its U.S. trademark registration in 1973. In February 2000 the U.S. Court of Appeals upheld Bacardi Co.'s right to use the mark. The appellate court confirmed the ruling of a lower court that Havana Club Holding had no rights in the HAVANA CLUB mark in the United States and that its effort to protect the mark in the United States violated Section 211.

Last year, the WTO Panel issued a preliminary ruling confirming that Section 211 violates the national treatment and most-favored-nation provisions in the TRIPs Agreement as it denies trademark owners access to the courts to enforce their intellectual property rights. However, the Panel also concluded that the TRIPs Agreement does not cover trade names and that it does not regulate the question of how WTO members should determine ownership of intellectual property rights. Based on the two latter findings, the EU appealed the Panel's decision to the WTO Appellate Body. The Appellate Body later reversed the Panel's finding and held that WTO members are obligated under the TRIPs Agreement to protect trade names, but upheld the right of WTO members to determine their own criteria for trademark registration, including the right to refuse registration of confiscated marks.