[This Document is the Property of His Britannic Majesty's Government.]
CHINA TRADE.
CONFIDENTIAL.
472
[January 20.]
SECTION 1.
[2101]
No. 1.
Sir C. MacDonald to Sir Edward Grey.--(Received January 20, 1908.)
(No. 278. Confidential.) Sir,
Tokió, December 21, 1907.
WITH reference to my despatch No. 241 of the 29th October last, I have the honour to transmit herewith copies of draft Conventions relating to the mutual protection of Japanese and American trade-marks in China, and to the protection of American marks in Corea, and Corean marks in the United States, which have been drawn up by the Japanese Foreign Office and the United States' Department of State respectively.
These drafts have been communicated to me confidentially by my American colleague, together with a Memorandum, copy of which is inclosed herewith, compiled in the United States' Embassy showing the main differences between the two drafts relating to China, and emphasizing certain points in the Japanese Foreign Office draft Convention and the Japanese law on the subject.
I have also the honour to inclose another Memorandum, in which the draft Conventions submitted in my despatch above referred to and these United States-Japanese draft Conventions are compared.
It will be noticed that the United States' Government have in principle agreed to waive extraterritorial jurisdiction in Corea as regards copyrights, trade-marks, patents, and designs, and have engaged that in these respects their citizens shall be under the exclusive jurisdiction of the Courts of the Japanese Residency-General and Residencies in Corea.
It appears that the United States' Government considered it improbable that any of their citizens would ever be likely to infringe any Japanese or Corean copyrights, trade-marks, patents, or designs in Corea, and they were therefore prepared to concede this point in order to obtain the consent of the Japanese Government to the signature of a Convention for the mutual protection of their rights as regards copyrights, trade-marks, patents, and designs in China. In conversation with Mr. O'Brien, the American Ambassador, the latter stated that had he been the occupant of this post at the time he would have advised strongly against making this concession. Mr. Miller, Japanese Secretary, upon whose advice, I presume, the concession was made, excused it to me by saying, "We gave up the shadow for the substance."
The granting of this concession by America is doubtless accountable for the fact that Count Hayashi submitted simultaneously for His Majesty's Government's consideration the draft Conventions relating to China and Corea, but, as I said in my despatch of the 29th October, it seems to me that if the proposals with regard to Corea are to be approved, forming, as they may, the first step towards a complete surrender of our extraterritorial rights, a quid pro quo should be obtained of a far more substantial nature than the satisfaction of demands which cannot be refused without great injustice to British merchants.
It will also be seen that whereas the draft Conventions submitted to His Majesty's Government relate only to trade-marks, those which have formed the subject of negotiations with the United States' Government include as well the protection of inventions, designs, and copyrights.
As regards trade-marks and the important proviso in Article I of the draft Anglo-Japanese Convention, which says that, "It is, however, understood that those who have actually been using trade-marks in China for at least three years prior to the operation of this Convention shall not be prohibited from continuing the use of the trade-marks in consequence of the exercise of the exclusive right thereto obtained by others," it will be observed that the Foreign Office United States-Japanese draft was originally worded so as to protect only those trade-marks registered after the Convention took effect, but this protection was not to be extended to trade-marks actually used by another person prior to such regulation.
Subsequently, as an apparent concession, the words "after this Convention takes effect" were struck out, and the Japanese Foreign Office expressed their willingness to insert the words "for at least three years prior to the operation of this Convention,"
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