DOW CHEMICALS V. CHINA: DOW WINS, FOR NOW

C O N F I D E N T I A L SECTION 01 OF 02 BAMAKO 000051

SIPDIS

E.O. 12958: DECL: 01/23/2019
TAGS: ECON EIND ETRD EINT EAGR ML
SUBJECT: DOW CHEMICALS V. CHINA: DOW WINS, FOR NOW

REF: A. 07 BAMAKO 1205

B. 08 BAMAKO 243

Classified By: Econ Officer Manoela Borges, Embassy Bamako, for
reasons 1.4 (b) and (d).

1.(C) Summary: On January 19, the Malian Supreme Court ruled
in favor of Dow Agro Sciences, a division of Dow Chemical, in
a trademark infringement case. The ruling reversed an
appeals court decision ordering Dow to pay USD 300,000 in
damages to the Chinese company against which Dow had brought
suit. The Supreme Court remanded the case to the appeals
court, which will decide whether to send the case back to the
tribunal in which the case was originally heard. Dow's
attempt to seek redress in the Malian courts has been a four
year long legal battle fraught with allegations that the
judges were corrupt. This latest decision could be a product
of increased transparency and accountability by Mali's
highest court, but is likely the result of political pressure
brought to bear on the Malian government to ensure a fair
outcome. End Summary.

--------------
Mali's Legal Labyrinth
--------------

2.(SBU) On January 19, Mali's Supreme Court ruled in favor of
Dow Agro Sciences in a trademark infringement case against
the Chinese company Daton Trading Enterprises (DET). The
court's decision was based on procedural grounds and
effectively vacated a prior Bamako appeals court ruling that
Dow pay USD 300,000 in damages to DTE. The case was remanded
to the appeals court, which must now determine whether to
return the case to the lower court in the southern town of
Sikasso where the case was initially heard.

3.(SBU) Dow initiated legal proceedings in 2005 after DTE
began marketing a copy of Dow's herbicide Gallant Super under
the name of Super Gallant with containers and labels that
mimicked Dow's product (Ref A). Malian police subsequently
seized some of DTE's Super Gallant as evidence, causing DTE
to countersue Dow for damages. DTE also filed a complaint
against a local Malian businessman in Sikasso who had copied
DTE's copy of Dow's herbicide. Police moved within days to
arrest the Malian individual and destroy his stocks of
counterfeit herbicide.

4.(SBU) Four years later, there is still no decision
regarding Dow's original complaint and the case Dow v. DTE
remains open at the lower court in Sikasso. The court did,
however, toss out DTE's countersuit. DTE then appealed to
the Court of Appeals in Bamako, which in December 2006
ordered Dow to pay DTE USD 300,000 in damages. Dow
subsequently filed suit in the Supreme Court, arguing that
the Bamako Court of Appeals had no standing to hear a case
that was still pending in a lower court.

--------------
This Round Goes to Dow
--------------

5.(C) One would hope the Supreme Court's January 19 decision
to remand the case back to Sikasso reflected the balanced
workings of an independent, transparent judiciary. However,
Dow's lawyer and others in Bamako have raised serious
concerns about the impartiality of several Supreme Court
justices and the notorious influence of less scrupulous
Chinese owned companies (Ref. B). Prior to the January 19
decision, the Embassy contacted a number of senior government
officials representing the Presidency, the Prime Minister's
office, and the Ministry of Justice to let them know the
Embassy was closely watching this case and re-transmit the
need for an impartial decision. It is unclear whether the
Supreme Court arrived at the decision of its own volition, or
our outreach effort helped to keep the Supreme Court from
veering towards an unfair, and unfortunate, decision. After
the decision, Dow's lawyer told the Embassy that he believed
the Embassy's communications played an instrumental role.

--------------
Comment: Back to Sikasso
--------------

6.(C) This ruling effectively extends a new lifeline to Dow,
which can now hope that it receives a fair hearing in Bamako
Court of Appeals. Unfortunately, the Appeals Court is no
less impervious to corruption than the country's highest
court and the Appeals Court's previous decision to rule on a
case that had not even been decided by the lower court in
Sikasso - normally a prerequisite for appealing to the

BAMAKO 00000051 002 OF 002


Appeals circuit in Bamako - would indicate that Dow still has
an upward, and perhaps quite long, battle ahead.
MILOVANOVIC