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their exclusion from the register, for while an open mark cannot be registered in England, it may be possible to register it elsewhere, and thereafter present it for re-registration in China under these Regulations.
2. That old marks, that is, marks which, whether registered in foreign countries or not, have been in bond fide use in China since the signature of the Mackay Treaty → have to be registered.
In Article 1 of the proposed Trade-marks Regulations of 1904 it was provided that "persons or firms who have bad lawful use of marks in China prior to the 1st day of the 1st month of the 29th year of Kuang Hsü (29th January, 1903) may either apply to have them registered under these Regulations or may deposit specimens of such marks, with the particulars of the goods on which they were used and the names of the proprietors. The registration office will keep a special list of the marks thus deposited, in the order in which they were deposited." Here the merchant is given the option of registering or depositing his mark for arrangement in a special series. The feeling among British and other merchants here is that they should not be called upon to register these old marks, but be permitted to deposit them, paying lower fees than those prescribed for registration. This, too, is the view of home manufacturers, for the Manchester Chamber of Commerce recommended that the clause "either apply to have them registered under these Regulations or may" should be omitted, and that the clause and marks so deposited shall be entitled to protection as prescribed equally with trade-marks" be added after "deposited," the final word of the sentence.
There can be no doubt that to compel merchants, as the redrafted Regulations do, to register old marks would entail a very heavy expenditure in fees, and it seems unfair that these Regulations should be made retrospective.
3. That insufficient protection is given to hong names,
This is a very serious matter, for many Japanese firms in Japan, whether intentionally or not, have the hong names of foreign merchants in China, and the Sub-Committee do not advance any proposal for a remedy, but they ask whether Regulation 1, Article 2, is intended to cover this point. Article 2, in its present faulty shape, does not cover this point, but it might be recast, for section 9 of the English "Act to consolidate and amend the Law relating to Trade-marks of the 11th August, 1905," gives "the names of a Company, individual, or firm represented in a special or particular manner" as one of the five essential particulars which a registerahle trade- mark in England must contain or consist of.
4. That the fees are still too high and not in accordance with Article VII of the Mackay Treaty, which lays down that "foreign trade-marks may be registered on payment of a reasonable fee."
The Sub-Committee point out that a comparison of the Chinese and English scales of fees and their application show that the Chinese is not less than three times greater than that of the English, and it seems hardly necessary to say that it would be unjust to expect foreign trade, which already provides so much of the legitimate revenue of China, and is at the same time the prey of arbitrary tax- gatherers, to be further handicapped by exorbitant fees for the registration of trade- marks and the various formalities connected therewith.
The Sub-Committee have put forward minor objections, pointed out other omissions, and drawn attention to several conflicting Articles in the Regulations; but the above are their most cogent objections, while their recommendations are not less important. They are:-
1. That the Registration Bureau should be located in Shanghae.
There can be no doubt that the great bulk of the business connected with the registration of foreign trade-marks will emanate from Shanghae, and the establishment of a branch or mere transmission office here without any executive functions will lead to interminable reference to Peking and to inordinate delays. It is the general tecling, not only among British, but also among other foreign, merchants that the Registration Bureau should be established in the commercial metropolis of the Empire.
2. That a duly qualified Comptroller, selected by the Patents Office, England, be appointed, and that the post shall continue to be held by a British subject so long as British trade in China predominates.
It is quite evident that little confidence will be placed in the ability or integrity of a bureau officered by native officials only, while the Treaty provision that the
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registration offices would be "under control of the Imperial Maritime Customs' now been departed from.
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3. That it would be well to wait until Japan has concluded an Agreement with England in regard to the mutual protection of trade-marks in China.
This is not the least important of the recommendations, for it is well known that Japanese have already pirated and registered British trade-marks in Japan, and are waiting their opportunity to demand their re-registration in China as soon as the Registration Bureau is established. That similar attempts will be made in the case of open marks there can be no doubt, so that the approval or adoption of any Chinese Trade-marks Regulations prior to an Agreement with Japan would be disastrous to British interests.
I may state that I have held conversations with many British and other merchants on the subject of trade-marks in China, and the general opinion is that they would much prefer to have no Regulations at all than be subjected to those that have been put forward by the Chinese Government, whether in 1904 or 1906. They would much prefer to continue their business on the present lines, without Regulations that would lead to endless litigation and annoyance.
I have studied these Regulations carefully and compared them with the English Trade-marks Acts and Rules, and the conclusion at which I have arrived is that they are faulty, contradictory, incomplete, and altogether unsuited as a basis for negotia- tion. I have already alluded to one important point-the imperfect definition given of a trade-mark. The Articles under the heading "Regulation 3-Public Notification of Trade-marks are unintelligible. What they are evidently intended to deal with
is objections that may be raised by third parties to the contents of applications for the registration of trade-marks, such as infringements, imitations, and the like, not with " inaccuracies." Again, the "Special Trade-marks Rules" lay down that old marks, whether recorded in a local yamên, in the Board of Commerce, or in a custom-house, shall be registered without publication; but to register or deposit marks without publication would constitute a great danger, while priority of filing or recording should not be allowed to give any advantage whatever. Each mark should be decided on its merits. Nor should registration in a foreign country, unless accompanied by actual bona fide use in China, mean absolute right to re-register.
Nothing is said regarding the language of the "Trade-marks Gazette." Naturally it will be Chinese, but it should be bi-lingual, and the second language should be English.
There are numerous other points, but I have said enough to show that these Regulations, which have been drafted primarily to serve as a Trade-marks Act for China and incidentally to embrace foreign trade-marks by a sort of side-wind, are altogether unsatisfactory.
I have, &c. (Signed)
Inclosure 2 in No. 1.
ALEX. HOSIE,
Acting Commercial Attaché.
Report of the Sub-Committee appointed by the China Association.
THE Sub-Committee, consisting of Messrs. James McKie (Jardine, Matheson, and Co.), E. C. Pearce (Ilbert and Co.), and Leslie J. Cubitt (Scott, Harding, and Co.), met at Mr. McKie's house on Friday, the 4th January, 1907.
The draft Regulations were carefully gone through, seriatim, and the Sub- Committee beg to make their Report as follows:-
By way of introduction it may be advisable to remark that the criticisms and recommendations made herein cover some points which may perhaps be considered of minor importance only, also some which may be modified or removed by explanations of the translator of the original text, but it has been thought better to omit nothing which, in the opinion of the Sub-Committee, calls for modification, explanation, or amendment, eitlier in substance or in phraseology.
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