VZCZCXYZ0002
PP RUEHWEB

DE RUEHTU #0137/01 0690857
ZNR UUUUU ZZH
P 100857Z MAR 09
FM AMEMBASSY TUNIS
TO RUEHC/SECSTATE WASHDC PRIORITY 6070
INFO RUEATRS/DEPT OF TREASURY WASHINGTON DC PRIORITY
RUCPDOC/USDOC WASHDC PRIORITY
RUCNMGH/MAGHREB COLLECTIVE

UNCLAS TUNIS 000137 
 
Sensitive 
SIPDIS 
 
STATE FOR EEB/TPP/IPE (MCGOWAN), 
EEB/CBA (WINSTEAD AND GILMAN), AND 
NEA/MAG (PATTERSON AND HAYES) 
STATE PASS USTR (CHOE GROVES AND BURKHEAD) 
USDOC FOR ITA/MAC/ONE (MASON) 
LONDON AND PARIS FOR NEA WATCHER 
 
E.O. 12958: N/A 
Tags: KIPR, ECON, ETRD, TS 
SUBJECT: 2009 Special 301 Review - TUNISIA - Post Input 
 
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Summary 
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¶1. (U) Post recommends that Tunisia not be included on the 2009 
Special 301 Watch List, given the GOT's improved IPR practices. 
While there is room for improvement in IPR enforcement efforts, 
particularly in the fields of optical media and software piracy, the 
GOT has set up inter-agency commissions to focus on this issue. 
Industrial associations are also becoming more vocal and are pushing 
local authorities for stronger enforcement of IPR protection.  Post 
believes that Tunisia is headed in the right direction and placing 
it on the Special 301 Watch List would be counterproductive.  End 
Summary. 
 
------------------------------------ 
TRIPS Compliance and Data Protection 
------------------------------------ 
 
¶2. (SBU) The GOT states it is in compliance with the letter of the 
TRIPS agreement as of January 1, 2005.  However there has been a 
longstanding difference of opinion between the GOT and the US 
pharmaceutical sector based in Tunisia, over the enforcement of WTO 
TRIPS Article 39.3 on "data exclusivity."   GOT ministries have also 
issued administrative regulations that enhance the protection of 
data exclusivity, submitted in the course of patent or marketing 
license application.  Tunisia has withdrawn from the Madrid 
Agreement concerning International Registration, and consequently 
requires that trademarks be registered in Tunisia to receive full 
protection.  Patents, designs, and industrial models are also 
protected when registered with the National Patent Office. 
 
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Treaties 
-------- 
 
¶3. (U) Tunisian Copyright Law was promulgated in Law No. 36/1994. 
Tunisia is a member of the Berne Convention for the Protection of 
Literary and Artistic Works.  In addition to its national laws, 
Tunisia is a signatory of many international conventions related to 
IPR, including:  WIPO treaties, WTO TRIPS, UCC and UPOV, Paris 
Convention Regarding Trademarks, the Nice Agreement Concerning the 
International Classification of Goods and Services and the Treaty on 
the International Registration of Audiovisual Works.  Copyrights are 
registered with the Organisme Tunisien de Protection des Droits 
d'Auteurs (OTPDA).  Tunisia is also a member of the Hague Agreement 
of November 6, 1925 for the International Registration of Designs 
and Industrial Models.  Designs and industrial models are protected 
through registration with the Institut National de la Normalisation 
et de la Propriete Industrielle (INNORPI).  The Civil Court 
prosecutes all violations and is entitled to confiscate revenues and 
counterfeit copies.  Current legislation also permits customs 
officials to inspect and seize goods if copyright violation is 
suspected. 
 
 
------------------- 
Enforcement Efforts 
------------------- 
 
¶4. (SBU) Post's continuous advocacy for improved IPR enforcement, as 
essential to improving the local business climate, has helped the 
GOT to undertake legal measures and administrative actions to 
address the problem. Amendments have been made to the Customs law 
that entered into force on January 1, 2009 and to the law on 
copyrights currently pending before the parliament.  The GOT is 
currently working on a draft commercial law which would stem the 
sale and distribution of counterfeit goods by requiring permits for 
street vendors.  In addition, inter-agencies strategies have been 
elaborated in order to coordinate raids and controls on main 
country's markets. 
 
 
¶5. (U) Ministry of Commerce figures, over the period 2006-2008, 
show: 
 
- 4.6 million counterfeited items have been seized, including: 
 
 - 1.979 million electrical components 
 - 1.051 million office supplies 
 - 448,274 health care products 
 
- Control agents accomplished 18,000 raids and registered 1,650 
 
infractions.  As a result of which: 
 
 - 64 out of 76 complaints have been addressed, of  which: 
  - 40 belong to local companies 
  - 12 related to foreign trademarks manufactured   in Tunisia 
  - 24 concern imported trademarks 
 
¶6. (U) On February 10, 2009, the Tunis Court of First Instance 
sentenced two Tunisian companies, SOFICO and TUMAR, for marketing 
counterfeited products of the French company SEB's trademark 
"Moulinex."  The court levied the following damages:  SOFICO must 
pay a fine of TND 1,000 (US $820) and TND 1,086 dinars (US $890.52) 
in damages, as well as TND 100 (US $82) per day until the fines have 
been paid.  TUMAR was ordered to pay a fine of TND 3,000 (US 
$2,460), TND 742.500 (US $608.85) in legal fees, and TND 50 (US $41) 
per day, until the fines have been paid. 
 
¶7. (SBU) Over the 2006-2008 period the Ministry of Commerce created 
a section, within the Economic Control General Directorate in charge 
of combating counterfeiting.  Minimum fines increased from TND 5,000 
(US $3,950) to TND 10,000 (US $8,200).  On December 23, 2008, 
President Ben Ali presided over a cabinet meeting that created the 
National Council for Combating Counterfeiting.  The Council will 
become operational this year.  The Ministerial Council is responding 
to the growing public outcry over the serious economic impacts of 
counterfeiting. 
 
¶8. (SBU)  The GOT has dedicated resources to increasing public 
awareness to combat IPR infringements, as opposed to imposing 
criminal penalties, feeling that the route to stopping piracy lies 
in cutting off demand.  On February 6, 2009, the GOT held a public 
roundtable entitled "Counterfeiting and the Financial Crisis" which 
addressed the relationship between a financial crisis and the growth 
of parallel markets selling counterfeit products.  There was much 
discussion about the fact that a financial crisis and parallel 
markets lead to the same outcome -- increased unemployment. 
Interlocutors stressed the importance of protecting IPR and 
combating counterfeit products as the means to protect jobs and 
economic growth.  Many raised the issue of large parallel markets, 
such as Moncef Bey and Sidi Bou Mendil, which are attracting 
Tunisian consumers with their cheap counterfeit products.  They 
called for increased public awareness campaigns to impress upon the 
consumer, the negative impact of his counterfeit purchases on safety 
and on the country's economy.  Lawyers called for strengthened penal 
action, the enactment of adequate sanctions, and the creation of a 
commission that brings lawyers and specialists together to establish 
a viable response against counterfeiters.  The GOT has implemented 
several public awareness campaigns, including radio and print media 
advertisements, advising the population on the importance of 
respecting intellectual property rights. 
 
-------------------- 
Bilateral Engagement 
-------------------- 
 
¶9. (SBU)  On March 24-25, 2008 Post supported a US Patent and 
Trademark Office (USPTO) seminar for judges, prosecutors, customs 
officials, and patent office representatives on IPR enforcement. 
Additionally, programs to educate consumers and manufacturers on the 
importance of IPR protection are also improving, including the 
February 6, 2009 seminar hosted by the Tunisia Polytechnic School 
that invited local authorities and private sector representatives to 
speak about counterfeiting phenomenon and the damage it is causing 
to the economy. 
 
-------------------- 
Optical Media Piracy 
-------------------- 
 
¶10. (SBU) Optical Media Piracy exists in Tunisia. Major retail 
establishments (Geant, Monoprix) sell pirated DVDs on open shelves. 
Numerous smaller retailers and kiosks also sell pirated optical 
media products.  Local vendors are unlikely to discontinue selling 
such media without greater interventions from the GOT.  Political 
connections at the major retail establishments and some local 
popular markets may also contribute to the problem.  In response to 
GOT enforcement action in October 2006, Carrefour, a major French 
retailer, no longer carries pirated CDs and DVDs. 
 
¶11. (SBU) IPR infringement is also a problem in the satellite TV 
sector.  A high number of end-users obtain European programming 
through pirated signals and tampered decoders, which are easily 
available.  End-users must periodically reprogram their satellite 
 
signal decoders to receive European-based programming.  Until now, 
GOT authorities have not made significant efforts to deal with the 
phenomenon. 
 
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Software 
--------- 
 
¶12. (SBU) IPR enforcement in government procurement of software has 
progressed positively since the GOT signed an agreement with 
Microsoft in late 2006.  Under the agreement, the GOT will pay TND 
7.8 million (roughly US $5.66 million) in royalties to Microsoft in 
2009, for the use of legitimate Microsoft software by government 
institutions.  This represents a positive step toward progressive 
enforcement of IPR on software in a country where Business Software 
Alliance (SBA) statistics showed software piracy rates in 2006 
reached 79 percent.  Software piracy for end users also persists on 
the private market.  Since 2000, well known stores located in 
"galerie commercial 7 novembre" provide the latest pirated software 
at prices as low as 5 dinars (roughly US $3.63). 
 
 
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Comment 
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¶13. (SBU) Post recommends that Tunisia not be included on the 2009 
Special 301 Watch List, in light of the GOT's improved IPR 
engagement.  There has been a progressively improving change in 
attitude towards IPR among Tunisian officials, as they recognize the 
negative impact that counterfeiting has had on Tunisia's economy and 
in response to increased public and international pressure for more 
effective IPR enforcement.  The GOT has taken a proactive legal 
stance toward IPR protection and has instructed local authorities to 
give customs and economic control officials ex-officio authority to 
seize counterfeit products, without requiring a prior complaint by 
the patent or trademark holder.   Post believes that Tunisia is 
headed in the right direction and placing it on the Special 301 
Watch List would be counterproductive.  End Comment. 
GODEC