Court No.

T-1867-08

FEDERAL COURT

BETWEEN:

EMPRESA CUBANA DEL TABACO, trading also as

CUBATABACO

Applicant

-and-

CORPORACION HABANOS S.A.

Applicant

-and-

TEQUILA CUERVO, S.A. DE C.V.

Respondent

AFFIDAVIT OF DR. GURPRIT S. KINDRA

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I, GURPRIT S. KINDRA, of the City of Ottawa, Ontario, MAKE OATH AND SAY AS

FOLLOWS:

Qualifications

1. I am currently a Professor in the Telfer School of Management at the University of Ottawa

and I have held that position for the past 28 years.

2. I teach Marketing at the MBA and Undergraduate levels, on an ongoing basis. In the past, I

have taught Consumer Behaviour and Promotional Management.

3. As a visiting professor, I have also taught e-Marketing at Sciences Po in Paris and Strategic

Marketing at the Bucharest Academy of Economic Studies, among other institutions.

4. From January 2007 to December 31, 2007, I served as Associate Dean of Graduate and

External Programs, in the College of Business Administration at California State University,

Sacramento. In this capacity, I was responsible for the strategic and day-to-day management

of all graduate level programs, including the EMBA.

5. I received my Ph.D. from the University of Iowa in 1981 and my M.A. from the same

university in 1982. I also hold an M.B.A. from Northwest Missouri State University (1977)

and a B.Sc. from Dalhousie University (1976).

6. I have expertise in the subject of marketing, with a particular focus on consumer behaviour.

Through research, teaching, and consulting work I have also gained expert knowledge of the

organization of corporate entities.

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7. I have conducted my own research in this field and have published approximately 16 papers

in refereed journals and 21 papers in scholarly conference proceedings; I have also prepared

21 invited presentations and technical reports as well as various working papers.

8. I am the co-author of Consumer Behaviour: the Canadian Perspective; this was the one of

the earliest Canadian texts on the subject in this country and was a standard textbook used in

many Canadian universities from 1990 until about 1996. I was also the contributing editor of

Marketing in Developing Countries (1984) and of Marketing Strategies for the Health Care

Sector (1990).

9. I am the author of an award-winning article entitled “De-marketing Inappropriate Health

Care Consumption in Canada.”

10. Throughout my career, and particularly in the last 15 years, I have been consulted by various

organizations, primarily in Canada, on issues like the use of fear in advertising and the de-

marketing of tobacco products. I have gained my experience in marketing as it relates to the

field of health policy through my participation in research and in consulting for many

organizations such as Health Canada, Industry Canada, and the World Bank.

11. In 1992, I appeared before the Parliamentary Sub-Committee on Health to discuss the

labeling of beer and other alcoholic beverage containers in relation to the prevalence of fetal

alcohol syndrome in Canada. In 1995, I was a co-author of an Expert Panel report to Health

Canada on Possible Effects of Plain and Generic Packaging of Tobacco Products.

12. Currently, I am consulting for the World Bank to develop communications strategies for

parliamentarians in emerging democracies. I am also engaged as an Expert by the

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 Department of Justice Canada, in a lawsuit involving direct-to-consumer (DTC) advertising

of prescription drugs in Canada.

13. Attached to this Affidavit and marked as “Exhibit A”, is a copy of my Curriculum Vitae,

which provides details my professional history.

Mandate

14. I was retained by MBM Intellectual Property Law L.L.P. to provide my professional opinion

of the following questions.

In your professional opinion, do pop culture references to brands

and/or trademarks have any significance? If yes, please explain.

In your professional opinion, do pop culture references to brands

and/or trademarks give you any information regarding the extent

to which that brand and/or trademark has become known? If yes,

please explain.

In your professional opinion, do North American pop culture

references to the word COHIBA give you any information

regarding the extent to which the COHIBA brand and/or

trademark, owned by Corporacion Habanos S.A., have become

known in Canada? If yes, please explain.

Methodology

15. The methodology I used in considering this question and preparing my opinion included

watching scenes from three movies, namely “Hotel Rwanda,” “Into the Blue,” “Bad Boys

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 II,” all via DVD. A DVD of “Hotel Rwanda” is attached to my affidavit as “Exhibit B”, a

DVD of “Into the Blue” is attached to my affidavit as “Exhibit C”, and a DVD of “Bad

Boys II” is attached to my affidavit as “Exhibit D.”

16. After watching the scenes in the movies where the word Cohiba is spoken and Cohiba cigars

are shown, I reviewed transcripts and screen shots of the relevant scenes from the movies,

along with the movie scene, to ensure they were accurate. Attached as “Exhibit E” are

screen shots and transcripts of these three movies. In some cases the subtitles from the DVD

are also shown on the screen shot.

17. I watched scenes from two television shows namely the pilot episode from the first season of

“Sex and the City” via a DVD copy of that episode, and the episode from “The Simpsons”

entitled “That 90’s Show” from the 19th season of “The Simpsons” via the internet at

http://www.wtso.net/movie/338-1911_That_90039s_Show.html . A DVD copy of the first

season of “Sex and the City” is attached as “Exhibit F.” A copy of a webpage from Fox

Broadcasting Company showing the name of the episode, a recap of the episode, and the date

it originally was broadcast on Fox is attached as “Exhibit G.” A copy of a screen shot, along

with a transcript of the dialogue, from “That 90’s Show” where Homer Simpson is seen

holding a cigar at about time he says “Cohiba me” is attached as “Exhibit H.” A copy of a

screen shot from “Sex and the City” where Mr. Big mentions Cohiba cigars and smokes a

Cohiba cigar, along with a transcript of the dialogue from this scene, is attached as “Exhibit

I.” The subtitles from the “Sex and the City” DVD are visible on the screen shot.

18. After watching the scene from “Sex and the City” and from “The Simpsons” I reviewed the

screen shots and transcripts to ensure they were accurate.

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19. I watched a music video “Window Shopper” by 50 Cent via the website http://www.mtv.ca

where I searched and found a copy of that video for viewing. A print out of the page where I

viewed the video is attached as “Exhibit J” and a print out of the screen of the scene in the

video where 50 Cent is given a Cohiba brand cigar by a man in a suit is attached as “Exhibit

K.”

20. I listened to 12 songs and, after I listened to the songs, I read lyrics for 9 of those songs along

with listening to the song. I listened to “Jealousy” by Fat Joe, “Real Playa Like” by

Fabolous, “Watch Me” by Jay-Z featuring Dr. Dre, “What Now” by John Cena and Tha

Trademarc, “Rush” by Talib Kweli, “Hustler Musik” by Lil Wayne, “Santa’s Got a Brand

New Bag” by SHeDAISY, “Leather So Soft” by Birdman and Lil Wayne, “Where’s Your

Money” by Busta Rhymes & Ol’ Dirty Bastard, “Cohiba” by Mario Vazquez, “Cohiba

Esplenditos” by Les Claypool and the Holy Mackerel and “Cohiba Noches” by David Lane

Walsh. A CD copy the songs, along with a print out of the play list of those songs, is

attached to my affidavit as “Exhibit L.”

21. I read a copy of lyrics for all of the songs except “Cohiba.” “Cohiba Esplenditos.” and

“Cohiba Noches.” and a copy of the unofficial lyrics from the internet that I read while

listening to the songs is attached as “Exhibit M.”

22. I referred to sections of the textbook “Consumer Behavior in Canada” written by myself,

Michel Laroche, of Concordia University, and Thomas E. Muller of McMaster University,

and reviewing various other teaching materials that I have accumulated over my years as a

professor and researcher.

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23. I also had COHIBA brand cigars, bearing Corporacion Habanos S.A.’s Cohiba trademark, in

the “Siglo VI” size in “tubos” (tubes) available to me while preparing this opinion. One of

these cigars, in its “tubo” is attached as “Exhibit N” to my affidavit.

Summary of My Opinion

24. There is a quotation, attributed to Sigmund Freud that “sometimes a cigar is just a cigar.” In

this case, a cigar is certainly not just a cigar. It is my professional opinion that when the

word COHIBA appears in pop culture references, including those that I have reviewed (listed

above), that this is a deliberate action by the maker of that work to use the brand image and

personality of the iconic COHIBA brand to benefit, via classical conditioning, the message in

that work. When an iconic brand, such as COHIBA, intentionally appears in a work, such as

a movie, television show, music video, or song, this is a reflection of the personality and

fame of the brand. It is my professional opinion that the COHIBA trademark, owned by

Corporacion Habanos S.A., has become famous in North America, and specifically in

Canada.

25. It is my professional opinion that the Cohiba brand personality has been cultivated and

nurtured over time – very successfully.

26. In order to explain my opinion, I will delve into some of the fundamental marketing concepts

that it is based upon.

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BACKGROUND - Brands and Trademarks

27. A “brand” is essentially the sum of the experiences and associations linked with a product, a

service, a person or another entity, such as a corporation.

28. From the perspective of a typical company, a brand serves as a powerful tool of

communication.

29. The psychological aspect of a brand is often referred to as the “brand image” and is a

symbolic creation in people’s minds of all of the associations, and expectations related to that

brand. Brand image is deliberately created and nurtured and is an essential part of the

company’s “total” total offering.

30. A “brand name” is the language element of a brand, either as spoken or written, associated

with a service, product, person or another entity. Brand name is also deliberately created and

nurtured by the brand’s owner and serves as an essential part of the “total” product offering.

31. Successful brands are those that invoke a positive brand image in the minds of consumers –

frequently, by referring only to the brand name, which is normally a trademark, as well.

32. A brand is typically represented by, or associated with, a trademark or a trade name. If

successful, trademarks and trade names serve the purpose of distinguishing products or

services of one company from its competitor(s). In addition, trade names and trademarks

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 also serve to “position” the associated product or service in the consumer’s mind in a specific

and pre-determined manner.

33. For example, when considering the brand APPLE, its image would commonly include such

associations as imagination, design, innovation, creativity, modernity, quality and style. This

image is part and parcel of the company’s attempt to market a unique and special product.

The brand name is APPLE, and the company, Apple Inc., also conducts business under the

trade name of APPLE. In addition, Apple Inc. owns the APPLE trademark.

34. It is common for people who are not marketing or trademark professionals to use the words

“brand” and “trademark” interchangeably, however in the field of marketing, this is not an

accurate representation.

BACKGROUND - Brand Personality and Archetypes

35. A “brand personality” is the specific mix of human traits that may be attributed to a particular

brand. For example, a brand, such as National Geographic could be described as having a

“dignified, inspirational and authoritative” brand personality. Harley-Davidson could be

described as having a “powerful, heroic, and confident” brand personality.

36. Brand personalities can be analyzed and classified through the use of archetypes.

37. Archetypes are personified symbols that allow the conscious mind to identify with, or access,

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 subconscious desires, meanings and truths. Archetypes represent our collective

consciousness, our common goals and fears - perpetuated through myths, stories, religious

beliefs and folk lore.

38. Archetypes are frequently used to instill meaningful “persona” into brands and are naturally

genuine and authentic.

39. An authentic brand is a powerful brand. Companies take great care to cultivate brand

authenticity. In the current environment, for example, Starbucks and Second Cup may be

viewed as brands that are “losing” their authenticity, while Levi’s, Apple, Ben and Jerry’s

and Canada appear to be maintaining their brand authenticity.

40. Karl Jung believed that people are shaped by the collective experience of past generations,

that they are civilization’s collective memories. This collective consciousness is the central

storehouse of memories inherited from previous generations.

41. For example, Jung would argue that many people are afraid of the dark because their distant

ancestors had good reason to fear the dark. The collective consciousness includes

archetypes.

42. Archetypes appear frequently in myths, stories, religion, the arts, and dreams.

43. There are many common archetypes, such as the wise old man, the outlaw, mother earth, the

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 trickster, the king, the magician, the hero, the devil and the serpent.

44. Marketers make use of archetypes to evoke their related qualities in a brand personality. For

example, in marketing men’s products, the image of the hero is used, such as the cowboy as

the Marlboro man, or the traits of a hero are referenced through a sports celebrity. The

mother earth archetype is often used in personal care products, or “natural” products.

45. The use of archetypes is a mainstream marketing concept. In 2000, the Brand Asset Valuator

(BAV) group of Young and Rubicam (one of the world’s largest marketing and

communications companies) started to measure brand personalities using an archetypes

model.

BACKGROUND - Marketing Segments

46. In marketing, product markets are typically segmented into various segments using variable

like lifestyles, geography, consumption patterns, and various demographics like people’s

incomes, occupations, and area of residence.

47. Typically, market segments have little to do with political borders. For example, the “North

American” market is commonly defined to include the United States, Canada, Mexico and

other smaller countries within the geographic region labeled “North America”. And within

North America, and across the Western world, certain sub-cultures like the Goth are viewed

as “cross-border.” And, sub-cultures like Hip-Hop and Rap can certainly be viewed as global

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 as witnessed by the phenomenal success of 50-Cent and Jay-Z in places like India and Japan.

Therefore, companies perusing the markets for music, fashion, taste, cosmetics and other

goods and services view their markets in a manner that is not constrained by geographic or

political considerations. Profitability of the segments is a key consideration.

BACKGROUND - Popular Culture

48. Popular culture, commonly referred to as “pop culture” is the culture that is widespread

within a population including the contemporary lifestyle, ideas, values, and themes that are

well known and generally accepted via an informal consensus within the mainstream.

49. Pop culture in North America is strongly influenced by the mass media.

50. The epicenter of mass media in North America is in the United States.

51. Pop culture originating from the United States, such as from “Hollywood” movies, television

and cable networks, celebrities, and music groups (which are generally groups of companies

that include music publishers, sound recording manufacturers, music distributors, and record

labels) generally flows throughout North America in particular, and throughout the western

world.

52. The political border between Canada and the United States generally does not stop the free

flow of pop culture from the United States into Canada, and for this reason many popular

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 “American” brands also become popular “Canadian” brands.

BACKGROUND - Reference Groups

53. There are various environmental influences on consumers. One that is relevant in this

opinion is the concept of the reference group.

54. A reference group is a group or person who is a reference, and an influence, for a consumer

who is learning and forming values, beliefs, attitudes or modes of behavior. The reference

group serves as a point of comparison, or reference.

55. Common reference groups include a person’s immediate family, their peers (hence the

common term “peer pressure”), friendship groups (such as service clubs, sports clubs, and

religious groups), formal associations and organizations (such as professional associations),

relatives, mentors, friends, opinion leaders (such as movie critics, wine columnists), and

celebrities.

56. Reference groups exert a powerful influence consumer’s buying behavior. It is for this reason

that business entities spend massive amounts of money on product endorsements through

entertainment personalities (like Elizabeth Taylor, Brad Pitt and Tiger Woods) as well as

corporate creations – (like the Marlboro man, the Pillsbury Doughboy, Jolly Green Giant and

the Michelin Man).

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BACKGROUND - Classical Conditioning

57. Classical conditioning is a type of learning. Essentially, when a known stimulus, that elicits

a response, is coupled with a second stimulus, over time the second stimulus will elicit the

same response.

58. For example, a dog sees food (the unconditioned stimulus) and drools (the unconditioned

response). If every time the dog sees the food it also hears a bell (a conditioned stimulus), it

will eventually drool upon hearing the bell (a conditioned response). Marketing attempts to

employ this technique of conditioning to sell goods and services.

59. In a typical advertisement using classical conditioning the product or service to be sold, is

repeatedly paired with something coveted or considered desirable by the target market. After

repeated exposure to the message, the product itself elicits the same craving or desire as the

coveted object.

60. Classical conditioning is a fundamental means of giving distinction to undifferentiated

products. For example, to make one beer stand out among many similar beers, classical

conditioning is the standard approach used in advertising. Each beer has a strong persona

that appeals to specific lifestyle segments of beer drinkers. And brands are part of a carefully

orchestrated effort to create this unique persona.

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BACKGROUND - Iconic Brands

61. An iconic brand is not an ordinary brand. Iconic brands not only reflect a brand image, they

also reflect something about society and about the person using the brand. The iconic brand

makes a powerful statement.

62. Iconic brands are brands that are so well known that they have become famous. They exude a

personality that is universally recognized. Such brands are typically desired or coveted by

many people.

63. Iconic brands transcend beyond simply communicating about a product, service, or company

to become part of the popular culture. Iconic brands often have deep social and cultural

roots, and sometimes grow beyond cultural boundaries.

64. Often, iconic brands successfully invoke archetypes in their brand personality.

65. To an observer, the personality and image of an iconic brand reflects upon the personality

and image of the person who associates with that brand.

66. People who see another (unknown) person in association with an iconic brand generally form

part of their impression of that person from the iconic brand(s). For example, people

generally view the man driving the BMW car differently than the man driving a Honda car.

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67. Iconic brands can be recognized by their appearance in popular culture and by their public

reference or display by celebrities, for example.

68. When a brand reaches icon status, other people and companies, instead of only the owner of

the brand, often attempt to reference the brand for their own benefit.

69. Companies and people will often use the brand image and personality of an iconic brand to

intentionally communicate something about their products or services or themselves.

70. For example, the politician who eschews her pre-election campaign Starbucks coffee in

favour of publicly drinking Tim Horton’s coffee is saying “I am reliable, sensible, and I am

not a snob.” The hip hop artist who has taken to drinking Crystal champagne and is driven

around in a Rolls Royce is saying “I am powerful, I have status, I am wealthy, and I have

arrived.”

71. The movie director, who shows the beautiful leading woman drinking Dom Pérignon in a

restaurant scene, where all of the men are admiring her, is doing this intentionally to borrow

meaning from this iconic brand image, such as exclusivity, high quality, high class,

celebration, and luxury. The movie director wants the viewer to instantly understand that the

men see this beautiful woman as a highly desired, unobtainable, high class woman who

requires the finer things in life.

72. The use of an iconic brand can elicit a conditioned response. For example, generally, when

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 consumers hear the iconic brand Tiffany, they think such things as beauty, wealth,

exclusivity, and love. Someone who wishes to elicit thoughts of beauty, wealth, exclusivity,

and love need only to invoke the Tiffany brand name, or trademark.

73. Pop culture references to brands demonstrate that the brand has become famous.

The COHIBA Brand, Brand Name and Trademark

74. In all of the movies, television shows, music video, and songs that I reviewed for this opinion

(that are listed above), the Cohiba brand was intentionally invoked either by saying the brand

name/trademark “Cohiba,” and/or by showing the “Cohiba” brand name/trademark. It was

clear in all of the references, except for the song “Cohiba Noches,” that Corporacion

Habanos S.A.’s Cohiba brand cigars, and its Cohiba trademark, were being intentionally

referenced.

75. There were recurring themes throughout the movies, television shows, music video, and

songs. Essentially the Cohiba brand was being evoked, via its brand name/trademark, to

represent status, wealth, power, intrigue, luxury, and mystery and to reflect those qualities

upon the characters of those movies, television shows, music video, and songs.

76. It was clear from the use of the Cohiba brand in the pop culture references that I reviewed

that the Cohiba brand is a luxury brand.

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77. The Cohiba brand and trademark have been used in association with images of status,

wealth, power, intrigue, and mystery so often that these images can be evoked at will by

showing or saying the Cohiba brand name/trademark.

78. The Cohiba brand seems to evoke images of several powerful archetypes, such as the king,

the warrior, and the hero. It has deep cultural and historical connections to the lore of the

Cuban cigar trade, the Cuban revolution, Fidel Castro, and the country of Cuba. As such this

brand resonates with authentic and powerful images of status, wealth, power, intrigue, and

mystery.

Representative References to COHIBA

79. Perhaps the most telling example, that really summarized the images that the Cohiba brand

evokes was in the video, “Window Shopper” by 50 Cent. I observed scenes of Monaco,

expensive shopping, lots of diamonds and beautiful women and the good life in general.

There were clear references to a $1.3 million Maserati car, a $16 million yacht, a $400

hamburger and a $300 Cohiba cigar. The video clearly implies that the hip-hop artist had

truly “arrived” and that Corporacion Habanos S.A.’s Cohiba cigar, along with the other

images of wealth and opulence, are proof of the artist’s status. It is worth noting that the

variety of cigar in the video is clearly that of Corporacion Habanos’ Cohiba brand.

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Conclusion - Reflection of Fame and Reinforcement

80. The references to the word Cohiba in North American popular culture means that

Corporacion Habanos S.A.’s Cohiba brand and trademark have become famous in Canada.

The Cohiba brand is an iconic brand and its use in popular culture reflects the fame of the

brand and the trademark.

81. References to the Cohiba brand and trademark in pop culture, in a manner consistent with its

brand image, as in the pop culture samples listed above, also serves to reinforce the strength

of the brand and to continue conditioning people to associate the images of status, wealth,

power, intrigue, and mystery to the Cohiba brandname/trademark. This serves to maintain

the Cohiba brand’s iconic status, and its fame.

82. References to the Cohiba brandname/trademark by celebrities, such as Jay-Z, 50 Cent, Don

Cheadle, Lil Wayne, and the members of the country music band SHeDaisy, as in the

examples of pop culture listed herein, as well as reflecting its fame and iconic status, serves

to further reinforce the awareness and reputation of the brand and trademark as celebrities are

known to be a powerful reference group that influences consumer behaviour.

83. It would seem to me that Corporacion Habanos, like any other business entity has and

continues to spend large amounts of money and energy into maintaining their brand

personality and successful positioning in the global market place for cigars.

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84. It would also seem logical and consistent with common practice that Corporacion Habanos

S.A. would defend its brand name Cohiba from attempts by other entities to unfairly

benefit/profit by associating their product or service with the good name, personality and

fame of Cohiba.

85. In this case a cigar is not just a cigar. The Cohiba brand is an icon, and the trademark is

famous in Canada.

86. I make this affidavit for the purpose stated herein and for no other or improper purpose.

SWORN BEFORE ME at the City of )

Ottawa, in Ontario,
)
This 1st day of June, 2009.
)
_____________________________
) ______________________________
A Commissioner of Oaths
) Dr. GURPRIT S. KINDRA
)

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