735
2
This Chamber respectfully urges the importance of the Registrar being a foreigner who shall be an expert in the matter of trade-marks, and the desirability of appeal from the Registrar's ruling to the foreign Ministers at Peking.
Language. The Regulations, as they stand, require that foreign applications be accompanied by Chinese translations. This Chamber is of opinion that foreign correspondence should be admitted in the English language only, for the following reasons:—
(a) According to Clause VII of the British Treaty, 1902, the Registration offices are to be under the Imperial Maritime Customs. In all departments of the Customs, English is the universal language for the transaction of business with foreigners, and there would appear to be no sufficient reason why an exception should be made in respect of the Registrar's Department, more especially as the staff will be foreign, and English is the one language common to all the nationalities of which the Customs staff is composed.
(b) The applicant would be entirely in the hands of his translator in making his application, and might subsequently find that the Registrar would not accept his translation as correctly conveying his intentions at the time of registration.
(c) The applicant would be put to considerable expense in the matter of translations.
Head Office and Branch Offices.--While this Chamber would view with satisfaction the establishment of the head office at Shanghae, as being the commercial centre for foreign trade, it is of opinion that, failing this, it is essential, in order to avoid delay, that the Shanghae office be empowered to issue certificates and transact business connected with trade-marks generally, subject to veto by the head office at Peking.
Scale of Fees.--It is the unanimous opinion of the members of this Chamber that the scale of fees is contrary to the spirit of Clause VII of the British Treaty, 1902, which stipulates that foreign trade-marks may be registered at a reasonable fee. It is also defective in omitting to state whether the fees, as stated, are payable for registration in each class, or constitute an inclusive payment for one mark in all classes at the option of the applicant.
In this connection, I may state that there is considerable doubt as to the interpretation of Regulation 11 and detailed Rule 21, upon firms making any change in their partnership arrangements the necessity of paying 20 taels per mark for the recording of each such change.
As the admission and retirement of partners in firms in China are of such frequent occurrence, this Regulation would involve a very serious outlay, and would for this reason call for a strong protest on the part of this Chamber.
On the other hand, if this is not the intention of the Regulations, an amendment of the wording, in order to obviate any possible misconception on the point, is held to be important.
Protection of marks registered abroad and marks that have been used in China for over two years prior to the application for Registration.--Regulations 8, 19, and 21 contain the provisions for the protection of established marks, such protection consisting in the fact that such marks "cannot be registered" (I may here note that other translations interpret this "will be refused registration"); and in the event of infringement, the proprietor has the right to proceed against the offender, who, if he be a Chinese, on the case being proved will be punished.
This is the reading of the Regulations by one section of the members of the Chamber, while there is another section to whom it is not clear that these three Articles contain even efficient protection for old marks which are not registered in China.
But assuming that the former interpretation is the correct one, it means that the proprietors of old marks must keep a constant watch, permanently, in order to see that their marks are not being infringed—a contingency that would certainly arise otherwise, as the marks not being registered, the Registrar would not, at the time of application by another, be in possession of the information which would justify him in refusing registration.
The constant necessity of such vigilance, apart from the payment of examination fees, would become an intolerable burden, but to adopt the alternative of registering all old marks would cost many of the older firms in Shanghae from 10,000 taels to 20,000 taels under the present scale of fees.
As it was evidently not the intention of the British Government, when making the Treaty, that merchants should be in a worse position than they were before, this Chamber cannot doubt that a more reasonable and less burdensome form of protection than the present Regulations contain will be insisted on.
In all countries where trade-marks are protected, protection is based on registration, which appears to this Chamber to be the only sound basis, but the cost of registering 200 or 300 marks under the scale laid down in Regulation 23 is prohibitive, and this Chamber ventures to suggest that the difficulty might be met by requiring owners of trade-marks registered abroad, and marks which have been used in China for over two years, to deposit such marks with the Registrar, accompanied by satisfactory proof of title, in order that the Registrar might have in his possession the necessary particulars for reference when considering applications. Should this suggestion not meet with approval, another way out of the difficulty might be found in permitting proprietors of such marks to register the same for the payment of an initial fee of, say, 30 taels, and a further fee of 1 tael for every mark so registered.
Finally, this Chamber is strongly of opinion that it is very desirable that an authorized English translation of the Regulations be issued which shall be accepted as the official guide in dealing with all foreign trade-marks.
In giving the foregoing details, it has been my aim to dwell only on those points which appear to be of fundamental importance, and to pass over minor ambiguities, which one may suppose will receive attention before the provisional Regulations are made absolute.
I have endeavoured to show that the claim for an extension of six months is well founded, and I earnestly trust that your Excellency may consider that the reasons given warrant your making a request to the Chinese Government in this sense.
I have, &c.
(Signed) WILLIAM D. LITTLE, Chairman.
Inclosure 2 in No. 1.
Minutes of Meeting of Shanghae Chamber of Commerce, September 22, 1904.
A SPECIAL general meeting of the members of the Shanghae General Chamber of Commerce was held at 1, Yuenmingyuen Road on Thursday, for the purpose of discussing the Provisional Regulations for the Registration of Trade-Marks in China.
There were present:-
Mr. W. D. Little (in the chair), Mr. J. W. Jamieson (British Commercial Attaché), Sir C. J. Dudgeon, Messrs. F. Bornemann, F. Bahnson, W. Ravier, C. Brodersen, J. Chapsal, W. B. Clayton, W. Ellis, D. H. Gilmour, R. Grundy, C. Iburg, J. N. Jameson, H. Keswick, H. R. Kinnear, R. Lundt, G. S. Lindsay, J. Moorehead, C. Selby Moore, C. Michelau, O. Meuser, C. H. Ryde, Ach. Riva, T. G. W. Schröder, W. K. Stanion, W. Stempel, M. Slevogt, J. L. Scott, J. Vander Stegen, C. Thiel, J. Valentine, R. P. Whitham, E. Wheeley, Leslie J. Cubitt (Secretary), and others.
The Chairman. As it is past the time for which the meeting is called, will ask you to take the notice convening the meeting as read. You all know the purpose for which we are called together. About three weeks ago I received from the British Commercial Attaché a translation of the provisional Regulations governing registration of trade-marks, under the terms of the recent British Treaty with China. These Regulations are to come into force on the 23rd October next. These Regulations were printed and forwarded to members as promptly as possible. The covering letters received from Mr. Jamieson, and also the Regulations, were sent to the local press to publish for the information of all concerned. I would like to mention here that I consider that we, the Shanghae General Chamber of Commerce, are much indebted to the British Minister for his courtesy in informing us of the position, for otherwise we should have been quite ignorant. This registration question has naturally created a very considerable amount of interest, and some consternation, at the suddenness of its arrival. It has been difficult in so short a time for a busy community to grasp and digest the situation and the possibilities thus brought about. On Friday last, as the result of a meeting of your Committee, we decided to wire to Sir Ernest Satow asking that he would use his influence to bring about a postponement for six months of the coming into force of the Regulations. The reason that we, a Chamber representing a cosmopolitan commercial community, addressed our request direct to the British Minister was, that he is the Representative of the first Power to embody an Article regarding the protection of trade-marks in a Treaty with China. The message we sent had the support of the American, the German, and the China Associations. The reply