6
She
Now, gentlemen, under existing conditions, what can China do more? distinctly states under Rule 21 that any one, being a Chinese, who undertakes to sell goods with a fraudulent trade-mark will be punished by the Chinese Government. They cannot do more than punish the Chinese importer, but they undertake to protect the rights of foreigners in that way. Complete and effectual protection against everybody (even the Chinese in China) can only be secured by such arrangements as Great Britain has with France, Germany, and Italy for mutual application in China of their domestic trade-marks legislation. Such a consummation, desirable as it is, must, however, take time to achieve. I must explain here that that Convention is the outcome of negotiations which the British Government has carried on with all the principal nations of the world in the last four years. Its object is to secure in China that mutual protection for their subjects which they would enjoy as residents in each other's countries. Thus a British subject infringes the mark of an Italian subject. In the terms of the Agreement that Italian can proceed against that British subject in the British Consular Court and can obtain satisfaction. He would have the same protection here as he would have against the man in Great Britain itself. Unfortunately, only three nations have come to this arrangement.
But, To sum up, I think there has been too much hasty jumping at conclusions. There is absolutely no necessity to expend large sums of money in registering marks or chops which were in public use in China when the Treaty was framed; it is the newcomer who has to do this. Holders of established marks, in fact, enjoy a greater measure of protection under these rules than they would have under the legislation of other countries. Nor need the newcomer be in a hurry. In terms of Supplementary Regulation No. 26 he has six months within which to complete registration, and there is no need therefore for him to be rushed. The rules cannot be expected to provide for every contingency; they are, after all, only provisional, and can be amended as found necessary. I would therefore deprecate what Sir Ernest calls carping criticism, and would ask you to let these rules have a fair trial, and to bear in mind that whatever anomalies, not of vital import, which you may find therein are due to the fact that the Chinese Government are legislating primarily for Chinese as far as registration is concerned, while at the same time doing their best for foreign interests as far as protection is concerned.
says
Fall
I hold no brief, either personally or on behalf of my superiors, for the rules as they stand, but as they have been drawn up tentatively after due consideration with the Representatives of three of the great nations trading with China, I venture to hope that you will agree with me in holding that the case for postponement must be a strong one before one can reasonably call upon the authorities at Peking to be at the trouble of opening up the whole question again. I may add that since the rules have been published certain minor points have been brought to my notice, and that these were forwarded by me to my Minister some days ago. I thought these were worthy of consideration, and might reasonably be put before the Chinese Foreign Office and placed on record in the Rules. One was an addition to Article 10 at the end, "that the grounds of renewal would be ipso facto given also by the applicant for registration." Another was in Article 23, to add "the payment of such fees entitles the applicant to have registration." Now we come to the detailed Rules, No. 1. "This application must be made in the Chinese language." It is suggested to add to this "Foreign applications may be made in the English language only." An addition was also suggested to detailed Rule No. 13. These alterations were suggested, I believe, by the "Deutsche Verein"; they were handed to me by the German Vice-Consul as favoured by himself and that Association. He asked me to give them my support, and I sent them forward with an expression of my own views on the subject, and I imagine they will be favourably considered. One other suggestion has been made, that in Article 14 there should be inserted a sentence to the effect that the Registrar shall be assisted by an expert Assessor. I do not feel justified in recommending that suggestion, because I think the question of an Assessor may well be left to the Chinese Government themselves. Experts are difficult to obtain, and if the handling of these Rules is to be in the care of the Customs, we can as well leave it to them as to any one else.
I don't know whether I have succeeded in explaining to you what has hitherto taken place in regard to these Regulations, but I may add that I propose to leave myself for the capital on Monday next, and I shall then have the fullest opportunity of laying your views before my own or any other Minister in person. As I understand that any further speakers must address themselves to the Committee, might I ask you, Mr. Chairman, to give me permission to clear up in the course of discussion any points which I may not have made perfectly clear?
now.
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The Chairman—We are all much obliged to Mr. Jamieson for his kindness in giving us the benefit of his remarks. I note that Mr. Jamieson says that holders of old marks will have a greater protection under these Rules, when they come into force, than they have. That being so, is eminently satisfactory (hear, hear). We have had some serious doubts on that point, and so far as I, and many of us, have been able to digest these Regulations we have hardly come to that conclusion. As these Regulations seem in one or two places to be contradictory, we thank Mr. Jamieson for the assurance that the holders of old marks will, under these Regulations, when they come into force, be in a better position than before. I should now like to hear from members any opinions or suggestions they have come prepared to make, and I am sure I can assure Mr. Jamieson that any criticism will not be brought forward in a carping spirit.
Mr. J. L. Scott.—I am sure we are all united in thanking Mr. Jamieson for his explanation of these provisional Regulations. There are one or two points, which after careful perusal on my part, seem to me of much importance, and which he has not touched on; and with your permission I should like to put them before you for discussion later on. I am afraid, perhaps, that my remarks may be a little lengthy, but I have made them as clear and concise as I can, and I think it will be better if I read what I have to say.
It must
Before beginning, I may remark that the British Treaty with China, 1901, provides for the protection of trade-marks against infringement by Chinese subjects, and it is only concerning such infringement that the Regulations have to be considered. Also be borne in mind that in criticising the Regulations one is placed at a disadvantage by not being in possession of the code by which these Regulations will be interpreted. This code, it is understood, has not yet been compiled. The disadvantages to foreigners of having the head office at Peking are very great, owing to its inaccessibility, and the consequent delay which must inevitably arise in the decision of all questions referred to the Comptroller. The most suitable place for the head office must appear, unquestionably, to be Shanghai, the port of entry for the bulk of imports and the centre of foreign trade. Assuming the head office to be at Shanghai, the necessity for branch offices almost ceases to exist—in fact, it may be reasonably held that one office only is preferable, provided always that that office is at Shanghai. Most of the Tien-tsin trade is on similar lines to Shanghai, and is likely to remain so, at any rate for many years, and there would appear to be no good reason for the establishment of three offices as provided for in the Regulations, necessitating as it does the duplicating of all documents, involving time and money to the person registering, as well as to the trade-marks authorities. The cost of maintaining these three establishments is reflected in the scale of charges, which will be referred to later on. Considering the large trade done in the south of China, I wonder why Canton was not added to the list of branch offices.
The establishment of one registry at Shanghai only would obviate the necessity of duplicate applications and duplicate memoranda attached to the same.
The clauses dealing with the procedure to be followed in regard to applications found to be in order, appear to be contradictory. Regulation 5 apparently provides for an interval of six months between the time when an application is found to be in order and the time when registration is proceeded with. This interval is to allow of protests being entered.
Detailed Rule 18, on the other hand, provides that on an application being found to be in order, registration at once ensues, and the applicant pays his fees and hands in the block of his trade-mark, which latter, in accordance with Regulation 18 and Rule 14 is forwarded to the head office at the end of the current month, to appear, presumably, in the next month's issue of the "Gazette." It would be useful to have the correct interpretation of the two clauses referred to—in the meantime it seems to me that persons desiring to protest would, in the ordinary course of events, not be aware of the necessity of doing so until the print of the mark applied for had appeared in the "Gazette."
It would seem desirable that Rule 13 should read somewhat as follows:—
"If an application is in order, the applicant will be duly informed. On receipt of such notice, the applicant will, within a given time fixed by the Registrar, return the notice, and hand in a block of his trade-mark. If, after a period of six months, no protest shall have been made, registration shall be proceeded with, and the applicant shall pay his fees on being notified by the Registrar.”
Regulation 5 would then require no alteration.
In the case of new marks, the contingency is rather a remote one, and applicants will probably have no cause for complaint, but in regard to similar marks already in use
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