./.RESTRICTEDWORLD TRADE
ORGANIZATIONIP/C/W/146
30 July 1999
(99-3199)
Council for Trade-Related Aspects
of Intellectual  Property RightsOriginal:  Spanish
COMMUNICATION FROM THE DELEGATION OF CUBA
The statement made by the delegation of Cuba at the meeting of the Council on 7 and
8 July 1999 is reproduced below.
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Cuba has repeatedly requested information on the consistency and relevance of Section 211 to
the TRIPS Agreement, under Article 63 of the Agreement, but has not yet received a satisfactory
reply from the United States of America.
At the Council's session in April, we drew attention to the time that had elapsed since Cuba
first formally requested the information on 2 December 19981 and today we would like to stress that
seven months have gone by and inexplicably the situation remains the same.  It might be asked why
this is so.
The TRIPS Agreement is an integral part of the system of basic legal rules of international
trade, binding on all Members, and it contains an appropriate mechanism to facilitate transparency in
the multilateral trading system.  If this mechanism is not applied, there is a significant impact on one
of the foundations of the system and this has consequences above all on the confidence which
Members of the Organization have in its rules.
However powerful and rich it might be, no country can defy multilaterally agreed disciplines
and still less the rules of an Agreement which, it must be recalled, does not allow reservations, and the
only exceptions permitted in Article 73 do not apply to the bases for Section 211.
This unilateral, coercive and illegal provision has no precedent nor any basis in the relevant
theory or law and is inconsistent with the rules in  the TRIPS Agreement.  It displays arrogance and
violates such elementary rules as those intended to protect consumers from the risk of confusion
regarding the origin of products or services, as well as directly compromising the security and legal
predictability that should prevail among Members of the WTO and between them and consumers.
On many occasions and in many forums, including the United Nations General Assembly and
the Association of Carbbean States, the international community has rejected unilateral coercive
measures.  At their recent summit in Rio de Janeiro, Latin American and European Union leaders
reaffirmed their rejection of unilateral and extraterritorial measures as contrary to international law
and the universally accepted rules of free trade and because they represented a serious threat to
multilateralism.
Cuba is not prepared to allow arbitrary procedures that are alien to multilaterally agreed rules.
                                                     
1 Document IP/C/W/120 (IP/C/W/120/Rev.1 in English).IP/C/W/146
Page 2
By implementing Section 211, the United States consciously violated the TRIPS Agreement.
It subsequently violated the Agreement once more  by failing to provide detailed and accurate
information on the consistency of this new legislative text with the Agreement.  Legal texts supplied
at the last minute, approximately five months after our first request was made, do not constitute a
response to Cuba's request in this connection.  Moreover, these texts are easily accessible by othermeans and neither clarify nor explain the action by the United States legislative body when it
implemented Section 211.  The objective of Article 63 is to show and confirm the quality and the
good faith of Members of the Organization implementing the Agreement in their relations with other
Members.
Section 211 hinders access to protection in the United States of America for applicants and
owners of trademarks and trade names, excluding them from the benefits available under existingtreaties and even United States legislation itself.  Its retroactive application also raises issues that are
difficult to resolve or understand and hampers the exercise and maintenance of intellectual property
rights.
According to our experts, Section 211 is inconsistent with the obligation undertaken by the
United States to apply the TRIPS Agreement as from January 1996, in accordance with Article 65.  In
particular, it violates such important clauses as those in Articles 3 (National Treatment),
2 (Intellectual Property Conventions) in connectio n with the Stockholm Act of the Paris Convention
for the Protection of Industrial Property, Article 41 of Section 1 (General Obligations) of
Part III (Enforcement of Intellectual Property Rights) and Article 62 of Part IV (Acquisition andMaintenance of Intellectual Property Rights and Related inter partes Procedures), which are all in the
TRIPS Agreement.
The aforementioned Section 211 is an additional measure related to the Helms-Burton Act:
now it is not only investment in property alleged to have been illegally confiscated after the triumphof the 1959 Revolution that is subject to sanctions, but the use, assignment or renewal of a trademark
or trade name are now also in the same situation.
Cuba has serious doubts regarding the provisions in Section 211 because their effects will not
only have an impact on intellectual property rights as such but will also create obstacles to trade and
foreign investment in Cuba.
The competent authorities in Cuba are studying closely the possibility of undertaking other
action in pursuance of Cuba's rights as a Member of the WTO.
We once again repeat our request to the United States of America last made at the Council
meeting held in April this year
2 for detailed information concerning the consistency of Section 211
and the TRIPS Agreement.  At the same time, we once again insist on strict and unconditional respect
for the principles of the multilateral system, whose rules should apply equitably and loyally and
without discrimination.
The delegation of Cuba requests the Secretariat to include this statement in the minutes of the
Council and circulate it to Members of the Organization.
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2 Document IP/C/W/142.