That’s Not a Real Cohiba

And Owen McKeon would know

Published in 2009 New Jersey Super Lawyers — April 2009

In the late 1990s, during the height of the stogie boom, Owen McKeon managed a cigar shop in Boston. On more than one occasion he was approached by a salesman offering suspicious-looking Cohibas. But McKeon could spot a fake. No sale. And  little did he know that only a few years later, after he graduated from law school, he'd be a cigar counterfeiter's worst nightmare.

McKeon, a commercial litigator at Newark-based Robertson, Freilich, Bruno & Cohen, is the guy cigar companies call when fake stogies are on the market. His first tobacco victory came in 2002, a year after he joined the firm. His client, the Stockholm-based tobacco giant Swedish Match, won a $200 million antitrust settlement against U.S. Smokeless Tobacco Co. That case taught him the inner workings of the tobacco business. And when Swedish Match acquired General Cigar Company, America's largest premium cigar manufacturer, McKeon was tapped to protect its top brands.

The most-counterfeited cigar brand is Cohiba. In addition to such brands as Macanudo and Punch, General Cigar owns the U.S. trademark for the Dominican-made Cohiba, identified by a red dot in the middle of the "O," thus called "Red Dot Cohibas" in the industry. Then there's the other Cohiba, whose trademark yellow band is owned by Cubatabaco. These Cuban cigars are contraband in the U.S.—at least until the embargo is lifted.

But it doesn't matter: You mess with one Cohiba, you mess with them all.

"Cigars are easier to counterfeit than, say, Louis Vuitton handbags or Tiffany necklaces," he says. "And, as with most luxury goods, you're selling a brand. If people buy a low-quality knockoff thinking it's the real thing, the brand's reputation is diminished."

McKeon works with a network of shop owners, salespeople and private investigators to identify fakes and pinpoint their source. "Sometimes it's just a guy with a garage full of phony cigars," he says. "He usually cooperates, to avoid a lawsuit. The bigger challenge is the counterfeiter who's sophisticated."

To take down major infringers, many of whom operate on the Internet, McKeon works with local law enforcement. "Sometimes a civil suit makes more sense, and sometimes you have to build a criminal case," he says. Last July, McKeon helped General Cigar stop a Nevada businessman from using the Cohiba name on his line of cigars and rum.

When criminal action is necessary, McKeon draws from his experience working in the Manhattan district attorney's office. "IP enforcement feels a lot like prosecutorial work. Your goal is to develop evidence through an investigation, then hand it off to a prosecutor; in other cases it's a civil suit but looks like a prosecution investigation," he says.

There are two boxes of cigars in McKeon's office. One is filled with Cohibas—or so it seems. "These are fakes," he says, from a case he's currently working on. The other is a desktop humidor filled with top-shelf smokes—McKeon's own stash. "I have another humidor at home with 5,000 sticks in it. My line of work is especially fun because I love cigars," he says.

For him, there is nothing better at the end of a day. "A cigar is an experience," he says. "In this profession, my wife likes to joke, the negative side of smoking is offset by the relaxation it brings—in my case, of just sitting down for an hour."

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