Statement by the Permanent Mission of the Republic of Cuba on Section 211 of the WTO’s Dispute Settlement Body April 20, 2009 Mr. Chairman, Expectations of fulfillment emerged from this case in last months seem to be even more diffuse with the passing of the time. Up to the this moment, nothing has changed in this particular case for more than 7 years, and the Defendant’s status reports this year have only added an ambiguous reference to a legislative proposal for which DSB’s resolutions would be applied. We have remembered here and we reiterate once again that the status reports should make reference to the progresses achieved in the implementation of recommendations or resolutions, in pursuance with paragraph 6 of Article 21 of the Dispute Settlement Understanding. U.S. administration presents itself as to be deeply worried for the nonobservance of the intellectual property rights in other parts of the world. They have recently published their list of countries that, up to them, do not do enough to fight against piracy. This is what is called the Special 301 Report in which the United States rank the countries according to the seriousness of the situation. It is extremely contradictory that who draws up this list of non-compliers and who is nowadays negotiating an agreement of Anti-Piracy, with a wider range than the TRIPS Agreement, is not able to immediately abolish Section 211 which violates precisely this WTO agreement of minimum standards and a Convention for the Protection of Industrial Property of 1883. In the absence of news in the statement of the U.S. delegation, let us refer to a serious event occurred at the end of last Marsh which is related to this case. In accordance with several international press agencies, a federal judge in the United States disallowed a demand by the Cuban company CUBAEXPORT --legitimate holder of Havana Club trademark-- against the Office of Foreign Assets Control (OFAC) of the Department of the Treasury, which turned down the permission requested in 1996. The disallowance of this demand is base on Section 211. The press did not take many hours in collecting the ecstatic statements of the Bacardí Company, whose spokeswoman said: “I believe this company has a legitimate right to the name” and “we're thrilled that once again the U.S. courts have upheld these laws”. Bacardí omitted that Section 211 was a legislation created and impelled by this company itself, the same company that five years after the promulgation of this Section was found to be violating fundamental principles of the Paris Convention and the TRIPS Agreement, and that a group each time bigger made up of Members of this Organization claims its abolition time and time again. Moreover, they overlook that Bacardí Company using HAVANA CLUB trademark is an act of disloyal competition. This clearly shows disloyalty towards consumers, competitors and the market. In terms of market disloyalty, this represents acts of exploitation of other people’s reputation, of confusion and deceit to consumers, and violations of regulations. Once again, Mr. President, we urge the immediate abolition of these regulations that are nowadays motivating U.S. judges to give rulings which legal basis are contrary to what this Body agreed 7 years ago. Attacking the registration of other people’s trademarks with the purpose of using them and avoiding real holders to market, any time, the identified product with the misappropriated mark is a harmful practice that the United States do not have any moral authority to judge while Section 211 is still in effect. Let us imagine for a moment what it would occur if another member would proceed to cancel the registration of valuable U.S. trademarks and a company would deliberately use them in that market, without supposedly violating the rights of trademarks and, even more, without abrogating unilaterally the prerogative of unknowing international agreements legally binding on effect and any legal ruling in the multilateral sphere. Obviously, this kind of acts would be legally punished and perpetrator would be a victim of pressure and commercial reprisals. Then, why a commercial developed power as the United States continues not recognizing, with impunity, the rights of a company of a little underdeveloped country, the commercial right, the international property right and the rulings of this body? Thank you very much. (Cubaminrex- Embacuba Ginebra) |