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above as bearing on the question of registration of trade-marks already in use, while for other reasons mentioned the longest possible period within which to challenge an application or even completed registration should be secured. If it were possible to invalidate completed registrations the present publication of the Patent Bureau would serve a useful purpose if it could be brought to the knowledge of the parties concerned, Even should a list of applications be published it would be of doubtful utility unless means were devised to bring it to the knowledge of any person or firm whose trade- mark was being pirated.
Speaking generally, it may be said that persons and firms having marks liable to imitation should lose no time in registering them. The expenses incurred in doing so are not excessive, and there is nothing to be gained by postponing matters till the last moment. This applies not only to trade-marks used in Japan, but also to those used elsewhere in the Far East. Whatever trade-mark regulations may be adopted in other countries, it may frequently happen that in the case of imitations coming from Japan action can be more easily taken in this country so as to deal with the source of the evil, while this would also tend to diminish the danger of applications for registration of the same trade-mark in such a country as China by British and Japanese simultaneously, each having the mark validly registered in his own country.
In the case of the attempted registration of trade-marks resembling trade-marks already registered the publication of applications would, of course, be very useful. In principle, ander section 4 of Article 2 of the Trade-mark Law quoted above the Patent Bureau have the power to reject, of their own accord, applications for such registrations, In actual practice, however, the fact of such imitations would probably be overlooked by the Bureau, and an opportunity for the owner of a registered trade-mark to protest against the registration of an imitation is certainly desirable. At the same time unless the owners of trade-marks had agents in Japan watching their interests, the second registration might be effected before their attention could be attracted. In the majority of instances provision might be made for this difficulty by retaining the services of the trade-mark agent whose services were orginally employed to watch in the owner's interests. It would, nevertheless, seem desirable to secure the longest possible period within which a protest could be made, if necessary, even after registration has been granted.
Attention may be drawn to the fact that in Japan so many trade-marks are worded in foreign languages, especially English. Owing to this there may be imitations sufficiently remote to evade the operation of the law, and yet able to deceive purchasers unable to do more than see and recognize a mere general resemblance. Apart from that, however, even when there is no imitation of a trade-mark at all a mark or label in English placed over goods generally coming from abroad will often take in Japanese ignorant of foreign languages. So far as Japan is conccrued such extensive use of foreign language is now inevitable, but it would be a great assistance to preventing deception if in cases where the language of the mark or label is not that of the country of manufacture of the goods it were obligatory to indorse the name of the country of origin on such mark or label. Doubtless, in Japan, such a remedy would now be inadmissible, but in China and Cores it would be a great assistance to the suppression of imitated trade-marks if there were no deception of purchasers as to country of origin. Even if a Trade-mark Convention in China with Japan as a party thereto were concluded, experience of the Trade-mark Law in Japan shows that many difficulties of interpretation of law must arise. Where, for instance, a Japanese Court of Law has decided that a certain mark is not an imitation of another (foreign) mark, there would always be a tendency to press for the registration of the Japanese mark in China, notwithstanding protests from (say) the British owner of the imitated mark; furthermore, Japanese Consular Courts in dealing with charges of counterfeiting trade- marks would, doubtless, be guided by precedents in the Courts in Japan, whose decisions have on several occasions excited much criticism amongst foreigners. If, therefore, in China and Corea it were possible in the case of trade-marks and labels not couched in the language of the country of origin or destination of the goods to enable purchasers to recognize the real country of origin, much would be done to discourage imitators of British trade-marks.
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Inclosure 4 in No. 1.
Memorandum respecting Trade-marks in Japan.
INCLOSED in this Memorandum is an account of the hearing in the Osaka local Court, and also in the Osaka Appeal Court, of a case to prove infringement of a British trade-mark duly registered in Japan. It will be seen that the local Court found that there was no infringement of the trade-mark. In the Appeal Court, while the imitation was decided to be an infringement, the case was dismissed for want of sufficient evidence against the accused, probably under Article 16 of the Trade-Mark Law, which requires knowledge on the part of the defendant to make him liable to punishment.
The case has further been appealed against to the Supreme Court at Tôki, and, pending a decision there, complete criticism of the matter cannot be made. Moreover, it is possible that the plaintiffs would have been better advised to apply first to the Patent Bureau for at least a ruling as to whether the imitation was an infringement. Japanese Courts seem sometimes to give very narrow rulings, adhering closely to forms of procedure, so that a case may be prejudiced by the slightest want of skill in introducing it.
Nevertheless, sufficient of the case has transpired for some comment. As to the decision of the lower Court that there was no infringement, attention may be drawn to the facsimile copies of the original trade-mark and of its imitation. Bearing in mind that English is not the national language of Japan, it can readily be seen that, even if there were some differences in the marks, such differences would not readily be perceived by the great majority of Japanese purchasers. Whisky is not a national drink of Japan, but there are numerous foreign commodities more and more generally consumed in Japan, so that it is an important matter to have not only close imitations, but also all imitations which might reasonably be expected to deceive Japanese prohibited.
Another noteworthy point is the tendency in Japan not only to imitate the trade- mark itself, but also to make use of false labels. In the case under consideration, besides the trade-mark itself, the defendant also adopted a label containing a certificate which could not possibly apply to any whisky made in Japan. Its adoption meant practically the giving of a warranty of quality, which was absolutely false, but this offence seems quite beyond the purview of Japanese Courts.
The case is important, not only from the point of view of British trade in Japan, but because it shows how inadequate the legal machinery of the Japanese Consular Courts in China (and Corea) may be to deal with imitations, even if a Trade-mark Convention were concluded. The interpretation of what constitutes an imitation (especially if the imitation happen to be already legally registered in Japan) will be a source of difficulty. Apart from that, the use of false labels and guarantees in English, which may not be punishable if no private rights are infringed, may be even more Where such false labels and injurious to British trade than imitated trade-marks.
If they are bought descriptions are used, the goods they cover are generally inferior. under the impression that they are British goods, a distaste for the latter may be established, to the lasting benefit of Japanese goods of better quality.
Another inclosure deals with the appropriation of a foreign Hong name by a Japanese, who had registered it in Japan. Under present Japanese law there seems no remedy for the foreign firm, who had never taken the precaution of registering their name in this country, and who would find themselves precluded from using the name in Japan. If a Trade-mark Convention with Japan as regards China were concluded, it is difficult to see how the mutual claims of the two parties for the registration of the Horg name would be settled, or whether the Japanese authorities would agree to a rejection of, perhaps, numerous Japanese applications for permission to continue using names and marks which they have copied for several years.
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