Sep 212014
 

http://wikileaks.org/cable/2006/03/06MANILA1367.html#

Reference ID Created Released Classification Origin
06MANILA1367 2006-03-24 07:34 2011-08-30 01:44 UNCLASSIFIED//FOR OFFICIAL USE ONLY Embassy Manila
This record is a partial extract of the original cable. The full text of the original cable is not available.
UNCLAS SECTION 01 OF 02 MANILA 001367

SIPDIS

SENSITIVE

STATE FOR EAP/MTS
STATE PASS TO USTR FOR BWEISEL AND DKATZ
BANGKOK FOR DOJ CHRIS SONDERBY
USDOC FOR 4430/ITA/MAC/DBISBEE AND SBERLINGUETTE
USDOC PASS TO USPTO FOR PETER FOWLER

E.O. 12958: N/A
TAGS: ETRD ECON KIPR EINV RP
SUBJECT: UNPRECEDENTED CUSTOMS RAID HAS SMUGGLERS SCRAMBLING

REF: MANILA 1223

SENSITIVE BUT UNCLASSIFIED – NOT FOR INTERNET DISTRIBUTION –
PROTECT ACCORDINGLY

——-
SUMMARY
——-

¶1. (SBU) Customs Commissioner Napoleon Morales launched an
unprecedented, 500-agent raid on March 16 against a Manila
mall notorious for hosting hundreds of sellers of pirated
and counterfeit goods. Closely guarded plans and a
professional approach caught stall owners by surprise.
Rather than pursuing arrests under Intellectual Property
(IP) law, Customs acted under the Tariffs and Customs Code,
which allows agents to demand proof of payment of customs
duties and taxes, without warrants. Agents investigated 700-
800 stores and seized goods worth over 700 million pesos
($1.4 million dollars). President Arroyo, at the Asia
Pacific Council of American Chambers (APCAC) on March 16,
mentioned the raid in public remarks as part of her tough
campaign against corruption and smuggling. Arrests appear
unlikely, but this large-scale Customs action sends an
increasingly strong message to IPR pirates that they can no
longer operate with impunity. End Summary.

———————–
BIGGEST RAID IN HISTORY
———————–

¶2. (SBU) In a March 17 meeting with ICE Attache,
Commissioner Morales detailed the raid’s implementation.
The raid had been planned for several weeks but only a
handful of key officials knew the specifics. On the day of
the raid, Morales called in 500 Customs agents and informed
them of what was going to happen. All logistical
arrangements had already been made and vehicles were waiting
to take them to Divisoria Mall number 168, a place known for
its sale of smuggled and counterfeit goods. Following the
briefing, the agents moved on the mall and sealed the
premises, which included two buildings, with two floors
each, and between 700 and 800 retail stalls. In her APCAC
address, President Arroyo described the operation as the
biggest raid against smugglers in the history of the
Philippines.

¶3. (SBU) Attorney Willie Sarmiento, the new Chief of the
Customs IP Unit, told Econoff in a follow-on conversation,
that agents had seized over 700 million pesos ($1.4 million
dollars) worth of goods. There were at least five stores
with pirated compact discs, but they were closed when
Customs agents arrived. Most seized goods were primarily
trademark infringing such as counterfeit garments, shoes,
and accessories. Inventory is expected to be completed by
the end of this week.

————————
GET THEM FOR TAX EVASION
————————

¶4. (SBU) Sarmiento said that Commissioner Morales acted
under Section 2536 of the Tariffs and Customs Code, which
allows Customs to demand evidence of payment of customs
duties, without benefit of a warrant. In a separate
conversation, Attorney Jun Rodriguez, a local IP lawyer and
member of the Philippines Intellectual Property Coalition,
clarified that this is a kind of “visitorial power.” The IP
Coalition has long been advocating the use of this power by
Customs, and Rodriguez is glad to finally see it in action,
especially on such a large-scale. Rodriguez added that
under this Section of the law, Customs cannot make any
arrests since non-payment of customs duties is not
criminalized in the Philippines. However, IP rights holders
could file individual cases against smugglers. The legal
result is likely to be forfeiture of all goods, which will
be turned over to Customs. Rodriguez cautioned however,
that IP rights holders would need to be particularly
vigilant since Customs is entitled to auction off any
forfeited goods, in order to generate revenue. Commissioner
Morales told ICE Attache that the goods are contraband and
cannot be auctioned, which means that Customs will have to
deal with the troublesome issue of destroying the
counterfeited goods.

————————————
RAID HAS SMUGGLERS RUNNING FOR COVER
————————————

¶5. (SBU) Sarmiento said that surrounding malls in Divisoria
actually closed on March 17 because they “were afraid of
possible raids” against them. Rodriguez of the IP Coalition
said that he very much welcomed this major raid by Customs.
“The more this is done, the more people will believe that
there is some law and order being followed.” He said that
sustained raids such as this one will hopefully result in
much needed changes of attitudes.

¶6. (SBU) According to Sarmiento, the raid was prompted by
numerous complaints from legitimate businesses and rights
holders as well as pressure for action from President
Arroyo. Sarmiento said that the raid was completely
Commissioner Morales’ initiative. In a separate
conversation, Rodriguez echoed Sarmiento’s claim of
complaints from businesses, but also said that he thought
the raid was partially motivated by USG pressure to improve
intellectual property protection.

——-
COMMENT
——-

¶7. (SBU) The raid was one of the most well-coordinated,
well-planned, successful operations we have seen from the
Bureau of Customs. Previously, Customs IP enforcement has
been limited to small searches and seizures at points of
entry, which are conducted by a handful of officers. Using
the Tariffs and Customs Code for such a large-scale
operation shows creativity and stepped-up attention to IP.
The recent decision to move the Philippines from USTR’s
Special 301 Priority Watch List to the Watch List has
generated much high-level attention to the issue. President
Arroyo has vowed to improve the Philippines’ intellectual
property protection regime and has directed senior level
officials to take action. While the raid is unlikely to
result in any arrests or high-profile cases, it does hurt
smugglers and vendors of IP infringing goods. If this is an
isolated raid, the net benefit will be negligible. However,
if Customs can effectively carry out regular raids,
regardless of whether they result in arrests or not, they
could serve as a significant deterrent to smugglers.

KENNEY

   

 

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