VZCZCXRO6093
RR RUEHMA RUEHPA
DE RUEHBP #1205/01 2951506
ZNR UUUUU ZZH
R 221506Z OCT 07
FM AMEMBASSY BAMAKO
TO RUEHC/SECSTATE WASHDC 8307
INFO RUEHZK/ECOWAS COLLECTIVE
RUEHBJ/AMEMBASSY BEIJING 0009
RUEHFR/AMEMBASSY PARIS 0403
RUCPDOC/DEPT OF COMMERCE WASHDC

UNCLAS SECTION 01 OF 02 BAMAKO 001205 
 
SIPDIS 
 
SIPDIS 
 
PARIS FOR AFRICA WATCHER 
 
E.O. 12958: N/A 
TAGS: ECON EIND ETRD EINT EAGR ML
SUBJECT: A HERBICIDE BY ANY OTHER NAME KILLS JUST AS SWEET: 
CHINESE COPY PUSHES DOW OUT OF THE MARKET 
 
 ¶1.  SUMMARY:  An ongoing legal case brought by U.S. based 
Dow Chemical Company against a Chinese competitor 
demonstrates the difficulties posed by trademark infringement 
and corrupt judicial practices to Western importers in Mali. 
Dow's product, a herbicide labeled Gallant Super, found 
itself up against Super Gallant, a Chinese copy that used 
similar labels, contained the same active ingredient, sold 
for a cut-rate price, and was backed by a compliant local 
judicial system.  Dow lost over 10 million dollars in sales 
in one growing season alone (2005).  The case continues to 
drag along, with Dow already losing several rounds at the 
local and appellate courts; meanwhile, the Chinese company 
filed a nearly identical case against a Malian competitor 
that was settled in China's favor in less than a week.  The 
legal double standard and how it may have come about explains 
in large part why Chinese products dominate the local market, 
but ironically also demonstrates why legitimate Chinese 
companies ought to have an interest in promoting a 
functioning judicial system in Africa. 
 
------------------------------ 
Gallant Super v. Super Gallant 
------------------------------ 
 
¶2. In 2005 Dow Chemicals sued the Chinese company Datong 
Trading Enterprise (DTE) in Malian and Burkinabe courts for 
infringing on Dow's trademark of "Gallant" chemical 
herbicides.  Dow claimed losses of USD 10.75 million, 10.25 
million of it in Mali, during the 2005 growing season alone, 
after DTE marketed copies of Dow's Gallant Super chemical 
herbicide under the label Super Gallant.  Dow's Gallant Super 
controls the growth of grass weeds in cotton crops and was 
sold to local farmers' associations through private 
distributors until Dow was forced to pull out of the Malian 
market.  DTE's Super Gallant contains the same active 
ingredient and is packaged with bottles and labels that copy 
the look of Dow's Gallant Super.  According to Salif Cissoko, 
the director of Mali's cotton parastatal (CMDT) in the 
Sikasso region, a Chinese company distributed the DTE copy at 
a cut-rate price to Malian cotton farmers. 
 
¶3.  The Malian government's lead investigator for the case 
was charged with seizing DTE's products in October 2005, but 
confiscated only a few samples as most of the product had 
already been distributed to the farmers.  The lower court's 
decision was then delayed for over a year, allegedly because 
the plaintiff failed to pay fees for the investigation and 
seizure process.  Dow's lawyer noted, however, that the court 
never provided the invoice for such costs.  The court finally 
rendered a ruling against Dow on procedural grounds, but the 
case technically remains open as it awaits a court decision 
on the substance of Dow's allegations. 
 
¶4.  Following the procedural ruling, DTE sued Dow in the 
appellate court, which fined the American company 150 million 
FCFA (approximately $300,000) for illegally seizing DTE's 
products and tarnishing its reputation.  Dow's lawyer, Abdoul 
Wahab Berthe (recently named the Minister of Labor), asserts 
that the case should never have advanced to the appellate 
court without first having a judgment made by the lower court 
on the substance of the case.  Berthe said it appeared the 
appellate court went even further, deciding on the case 
without even considering or reviewing the case file from the 
lower court.  Officials close to the case surmise that 
China's power in the region allowed them to circumvent normal 
judiciary procedure; other observers openly accused the 
Chinese of paying bribes to sway the courts. Dow plans to 
appeal the procedural and the defamation decisions to the 
Supreme Court. 
 
-------------------------------- 
Super Gallant v. Gallant Regular 
-------------------------------- 
 
¶5. Ironically, at the same time it was defending itself 
against Dow, DTE pursued a nearly identical case, albeit in 
the other direction, against a local Malian businessman. The 
Sikasso resident made a counterfeit copy of the Chinese copy 
of the Dow herbicide.  The local Malian version was called 
Super Gallant, like the Chinese copy.  Unlike the Dow case, 
DTE's complaint against the Malian company resulted in 
instantaneous results.  Within twenty-four hours, the Malian 
was thrown in jail by the local police and bail was set at 10 
million FCFA (about 20,000 dollars).  The counterfeit 
products were seized and destroyed within days. 
 
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BAMAKO 00001205  002 OF 002 
 
 
Chinese Trademark Infringement in Mali 
-------------------------------------- 
 
¶6. Both CMDT and judiciary officials in Sikasso admitted to 
the rampant number of Chinese counterfeit goods flooding the 
region (and elsewhere in Mali). Sekou Thiam, Chief of 
Production at the CMDT Sikasso branch, said that DTE had 
introduced other counterfeit goods in Sikasso.  Interestingly 
enough, Thiam's office wall sported a DTE wall calendar. 
Locals were quick to note that around the time the case was 
tried, the Chinese donated a number of tractors to 
communities in the region. 
 
--------------------------------------------- --------------- 
Tipping the Scales of Justice One Tractor at a Time 
--------------------------------------------- --------------- 
 
¶7.   Comment:  Malians see China as a very important 
commercial partner regardless of whether Chinese follow fair 
trade rules.  Even members of the Malian judicial system 
conceded weaknesses in this area.  Accusations that bribes 
were distributed, or that the tractors were donated to 
influence the case in DTE's favor, are only anecdotal. 
Nonetheless, the accusations seem credible, especially when 
considering they come from officials working within the 
Justice Ministry.  At the very least, Berthe, now a senior 
member of the Malian government, and other officials conceded 
that the decisions reached by the courts do not seem to have 
a basis in Malian law. 
 
¶8.  Comment Continued:  Dow's case may eventually be 
favorably resolved through a careful mix of legal and 
diplomatic pressure, but the case points to a wider need for 
all companies to promote the rule of law.  Just as DTE took 
advantage of Mali's legal system (unfortunately to protect 
its own pirated product), legitimate Chinese importers will 
need a reliable legal system to protect their markets from 
illegitimate goods.  Chinese companies are already in direct 
competition with each other in textiles and tea.  Balancing 
their demands, and those of others seeking to enter Malian 
markets, may ultimately convince the Chinese to re-balance to 
scales of justice as well. 
LEONARD