DOW CHEMICALS V. CHINA: A WEST AFRICAN IPR CASE

C O N F I D E N T I A L SECTION 01 OF 02 BAMAKO 000243 SIPDIS SIPDIS E.O. 12958: DECL: 03/06/2018 TAGS: ECON EIND ETRD EINT EAGR ML SUBJECT: DOW CHEMICALS V. CHINA: A WEST AFRICAN IPR CASE STUDY REF: BAMAKO 01205 Classified By: Political Officer Aaron Sampson, Embassy Bamako, for reasons 1.4 (b) and (d) 1.(C) Summary. During the week of March 3-7, the Emboffs met independently with the Secretary General of the Ministry of Justice and Kader Bah, a key member of President Amadou Toumani Toure's inner circle, to reiterate concerns regarding the on-going trademark infringement case against a Chinese company guilty of counterfeiting a herbicide produced by Dow Agro Sciences, a division of Dow Chemicals. The Supreme Court is expected to render a decision perhaps as early as this month. In recent weeks, however, Court officials have allegedly solicited bribes from members of Dow's legal team. Both the Secretary General and Mr. Bah expressed concern that the Supreme Court justices could be swayed by Chinese influence and promised to do their part to ensure a fair Supreme Court decision. End Summary. -------------- Fairness of Impending Ruling in Doubt -------------- 2.(U) The Malian Supreme Court is reportedly close to a ruling on the three-year long trademark infringement case brought by Dow Agro Sciences against the Chinese company Daton Trading Enterprise (DTE). Dow initiated legal proceedings in 2005 after DTE began marketing a copy of Dow's herbicide Gallant Super under the name of Super Gallant (Ref A). DTE then countersued for damages. The countersuit was subsequently thrown out by a local court in Sikasso. DTE appealed and in December 2006 the Bamako Court of Appeals ordered Dow to pay DTE roughly USD 300,000 in damages. Ironically, the Appeals Court penalized Dow for having infringed on a trademark owned by DTE. 3.(C) In mid-February two representatives from Dow Agro Sciences' headquarters in France met with the Embassy to provide an update. Although the Dow officials were careful not to accuse officials associated with the Malian Supreme Court of directly asking Dow for bribes in connection with the case, they hinted that Dow Agro Sciences' local legal team had been approached for possible payments from members. -------------- The Presidential Insider -------------- 4.(C) On March 4 Emboffs met with Kader Bah, a close confidant of President Toure, to discuss various issues. Bah describes himself as one of the most pro-American individuals within President Toure's inner circle. In November 2007 he resolved, within the space of two weeks, a long-standing legal dispute between an American non-profit development NGO and officials at the Malian Ministry of Territorial Administration. The dispute had forced the NGO to drastically curtail its operations in Mali, and had the issue not been resolved, the NGO would have been forced to leave Mali altogether. In February the Malian press reported that President Toure intended to name Bah as the Presidency's Cabinet Director. Bah confirmed this to the Embassy but said neither he nor President Toure were in a rush to finalize the appointment. 5.(C) We briefly raised the Dow case with Bah and expressed concern that DTE could unfairly influence the judicial process. Bah responded by candidly noting that the only way to ensure a Supreme Court decision was by paying off the justices. We responded that this was not an option for an American company and that an unfair decision in favor of DTE would reflect poorly on the Malian judicial system. We also noted that a fair decision would help restore confidence in Mali's respect for property rights and the rule of law. This seemed to sway Bah to some extent and he asked for a copy of the French language talking points on the case prepared for distribution in Mali by Dow Agro Sciences so that he could brief President Toure. Bah rapidly dismissed the notion that the Minister of Justice had any say in this matter and insisted that the only person capable of finding a solution was the President himself. -------------- The Ministry of Justice -------------- BAMAKO 00000243 002 OF 002 7.(C) On March 5 Emboffs met with Badou Hasseye Traore, the Ministry of Justice's acting Secretary General. During the meeting, we stressed that the Dow case provided the government of Mali with a strong opportunity to demonstrate its commitment to the protection of intellectual property rights. We noted that the U.S. was following the case very closely and that the outcome would inform the guidance we provide to American companies who contact the Embassy for information on investing in Mali. 8.(C) Mr. Toure was receptive to our concerns that court judges could be swayed by Chinese influence compromising the fairness of the legal proceedings. He promised to brief the Minister of Justice and said that he and others within the Ministry shared our concerns about unfair and/or corrupt practices within the Malian legal system. He closed by noting that the Ministry would not accept misbehavior by judicial authorities and would remind the Supreme Court justices of the need to ensure a fair and correct application of the law. -------------- -------------- Comment: Doing The Right Thing For The Wrong Reasons -------------- -------------- 9.(C) On March 6 Kader Bah told the Embassy that he had already discussed the Dow case with the Minister of Justice and that he intended to brief President Toure on the matter later in the day. Until the Supreme Court's decision actually comes down, there is no way to know whether last minute appeals for a fair trial by the Justice Minister, Kader Bah and perhaps the President himself will sway the nine Supreme Court justices. Given the depth of China's influence in Mali and the unscrupulous practices of Chinese companies on the continent, the odds likely remain in DTE's favor. If Dow prevails, it would mark the first time an American company has prevailed in a legal dispute in Mali against Chinese interests. It is less clear whether a favorable decision for Dow would mark a success for the Malian judicial system as it is likely that the Supreme Court's decision would be a product not of Malian law but political pressure from above. MCCULLEY