VZCZCXRO5306
RR RUEHMA RUEHPA
DE RUEHBP #0251/01 1111647
ZNR UUUUU ZZH
R 211647Z APR 09
FM AMEMBASSY BAMAKO
TO RUEHC/SECSTATE WASHDC 0262
INFO RUEHZK/ECOWAS COLLECTIVE
RUCPDOC/DEPT OF COMMERCE WASHDC

UNCLAS SECTION 01 OF 02 BAMAKO 000251 
 
SENSITIVE 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: ECON EAID ETRD EINT EAGR ML
SUBJECT: MALI'S ANTI-PIRACY EFFORTS STYMIED BY ITS OWN 
JUDICIARY 
 
REF: BAMAKO 51 
 
¶1. (SBU) Summary: On March 21, Malian authorities destroyed 
20 tons of counterfeit goods - including fake toothpaste, 
soap, and other products valued at USD 40,000 to 60,000 - 
seized from local markets.  The joint effort by the Regional 
Directorate of Trade and Competition (DRCC), law enforcement, 
local, and judicial officials was the latest action in Mali's 
attempt to curb its flourishing trade in counterfeit goods. 
Counterfeit products comprise a significant share of local 
consumption of some goods: an estimated 40 percent of the 
cigarettes on the local market, for example, are deemed to be 
counterfeit.  In an April 6 meeting with Embassy, Director of 
the DRCC said the largest obstacles to effectively combating 
piracy were a shortage of resources as well as delays and 
corruption within Mali's judiciary.  While western donors 
often tend to focus more on the corrupt component of the 
Malian judiciary, helping Mali address its systemic 
shortcomings - ranging from the evident lack of training, 
resources, and qualified personnel - may be the first step 
toward supporting responsible officials and institutions like 
the DRCC combat against Mali's trafficking trade.  End 
summary. 
 
--------------------------------- 
Mali's Trade in Counterfeit Stuff 
--------------------------------- 
 
¶2. (U) On March 21, a regional branch of Mali's primary 
anti-piracy authority, the Regional Directorate of Trade and 
Competition (DRCC) in Segou, northeast of Bamako, destroyed 
2,330 cartons of counterfeit Close Up toothpaste, 447 cartons 
of soap, 290 cartons of motor oil, and sundry other products 
valued at CFA 20-30 million (USD 40,000-60,000).  This was 
the most recent of the agency's efforts to curb Mali's 
vibrant trade in counterfeit goods, which includes 
cigarettes, textiles, auto parts and electronics, medicines, 
and foodstuffs.  Most of these goods are manufactured in 
China, while counterfeit electronics originate primarily in 
Dubai.  The DNCC claimed that, between 2004 and 2007, it 
seized CFA 474.5 million (USD 949,000) worth of counterfeit 
products. 
 
--------------------------------------------- -- 
Anti-Piracy Efforts Face Significant Challenges 
--------------------------------------------- -- 
 
¶3. (U) In an April 6 meeting with the Embassy, Director of 
the National Directorate for Trade and Competition, Mahamane 
Toure, said Malian law made it difficult to prove what he 
described as otherwise straightforward cases of piracy. 
Mali's 2007 statute against piracy requires the complainant 
to prove, in a tribunal, ownership of the original product. 
Ownership is based on the registry of the product with the 
Organization of Intellectual Property of African Countries 
(OAPI), a regional organization, and the Malian Center for 
the Advancement of Industrial Property (CEMAPI).  Toure 
claimed that this can be tricky, as the tribunal may 
interpret the language of the product registration quite 
strictly.  Taking his cellular phone as an example, Toure 
said that the court could decide that, if the size of the 
lettering of the brand in the original product had not been 
specified, the product in question might not, in fact, be 
registered and the complainant could claim no damages. 
 
¶4. (U) Once the complainant has successfully proven 
infringement of intellectual property rights, the tribunal 
approves the seizure of the counterfeit product, at which 
point the DNCC may destroy the merchandise.  In some cases, 
the companies in dispute may reach an agreement before the 
case is heard in the tribunal.  Toure gave the example of one 
Chinese tea company whose labeling closely resembled that of 
another Chinese tea manufacturer.  Both parties agreed that 
the offending company would remove its labeling and sell its 
products in bulk, thereby avoiding significant losses.  This 
case, involving two Chinese companies, was the only instance 
of agreement Toure could cite. 
 
¶5. (SBU) When asked about the role of the judiciary in 
enforcing Mali's anti-piracy laws, Toure said it is 
complicated and indicated that delays and corruption within 
the judiciary had stymied efforts to combat the flourishing 
trade in counterfeit goods.  At best, the tribunals are slow 
to decide the merits of complaints.  At worst, judges could 
be bribed to rule against the complainant in clear instances 
of property rights infringement.  Toure cited two ongoing 
cases: Dunhill cigarettes, owned by British American Tobacco, 
and Maggi bouillon cubes, owned by Nestle. Both cases involve 
Chinese manufactured counterfeits.  Toure presented samples 
of the original and counterfeit Maggi bouillon packages, 
 
BAMAKO 00000251  002 OF 002 
 
 
which had only minor, almost indistinguishable differences. 
 
¶6. (U) In addition to challenges in the judiciary, Toure said 
it was difficult for the DNCC's agents to effectively patrol 
borders and marketplaces, as they lacked transportation. 
With 210 agents to staff eight regional offices as well as 
the national office in Bamako, the DNCC also faced shortages 
in manpower.  These shortages prompted British American 
Tobacco (BAT) to sign an agreement with the DNCC in December 
2008 to provide support for anti-piracy efforts, which 
included the provision of ten motorcycles for DNCC patrolling 
in key areas.  BAT has been heavily affected by piracy, as 
DNCC officials estimated that 40 percent of all cigarettes 
consumed in Mali were counterfeit.  Toure did not say whether 
the 10 motos offered by BAT were also of Chinese origin. 
 
---------------------------- 
Comment: The Judiciary Again 
---------------------------- 
 
¶7. (SBU) Mali's limited ability to tackle the trade in 
counterfeit products provides yet another example of Mali's 
difficulties in enforcing the rule of law.  The Malian 
judiciary has proven unable to meaningfully respond to the 
trafficking of goods, as well as to the trafficking of arms 
and human beings.  While judicial corruption is often the 
easiest scapegoat, problems with the Malian judiciary go much 
deeper and include systemic challenges associated with legal 
training, judicial resources, and an inadequate number of 
magistrates and judges on the Malian bench.  The experience 
of the U.S. firm Dow Agro Sciences illustrates these 
complexities (reftel).  Its four year ongoing legal battle 
with a Chinese company accused of trademark infringement has 
turned into a showcase of the Malian judiciary's inability to 
adjudicate complex cases of intellectual property rights. 
Similar challenges plague other aspects of Mali's enforcement 
mechanisms.  Meanwhile, Mali's flourishing trade in fake 
products continues to put consumers at risk and discourage 
investors who cannot be assured of the minimum protections 
for their investment. 
LEONARD