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.

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Fairness of Impending Ruling in Doubt
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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.

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The Presidential Insider
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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.

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The Ministry of Justice
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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.

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Comment: Doing The Right Thing For The Wrong Reasons
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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