This Document is the Property of His Britannic Majesty's Government.
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CHINA TRADE,
CONFIDENTIAL.
[March 13.]
14-13 03
SECTION 1.
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(No. 77.) Sir,
No. 1.
Sir J. Jordan to Sir Edward Grey.-(Received March 13.)
Peking, February 17, 1908.
WITH reference to my despatch No. 54 of the 1st instant, I have the honour to forward to you herewith copy of a letter which I have received from the Acting Commercial Attaché to His Majesty's Legation submitting his observations on the proposed Convention between Great Britain and Japan and America and Japan for the mutual protection of trade-marks in China and Corea.
I have already furnished His Majesty's Ambassador at Tokio with a copy of Sir A. Hosie's letter.
I have, &c.
(Signed) J. N. JORDAN.
Dear Sir John,
Inclosure in No. 1.
Sir A. Hosie to Sir J. Jordan.
Shanghae, January 28, 1908.
I HAVE read Sir Claude MacDonald's despatch, Confidential, of the 27th December, 1907, and its various inclosures regarding the proposed Convention between Great Britain and Japan and America and Japan for the mutual protection of trade-marks in China and Corea, and, in accordance with your request, I beg to submit the following observations thereon:
1. According to Japanese law a mark cannot be registered in Japan which is the same as or resembles a trade-mark used by another person before the trade-mark law came into force (i.e., 1st July, 1899); but if a trade-mark of this kind is registered by an oversight, and is unchallenged for a period of three years, the registration cannot be cancelled. This, I presume, is the reason why so much stress is laid on the period of three years in the understanding attached to Article I of the proposed Convention between Great Britain and Japan, and why the Japanese Foreign Office has expressed its willingness to insert the words "for at least three years prior to the operation of the present Convention" in Article I of the proposed Convention with the United States, which in its original shape denies protection to any trade-mark actually used by another person prior to registration. The Mackay Treaty of the 5th September, 1902, introduced the subject of the registration of foreign trade-marks in China, so that all marks registered in the Japanese Patent Office between that date and a period of three years anterior to the conclusion of the present Convention (say, from 1902 to 1905) are, because unchallenged, valid in Japanese law and cannot be cancelled even if they are piracies of British trade-marks. Sir Elkanah Armitage and Sons' "Crocodile" mark is a case in point.
It was registered by a Japanese at the Japanese Patent Office on the 20th February, 1903, and, because unchallenged at the Patent Office within three years, it was made final, and is now being used by Japanese in China on the same class of goods as those of English make, namely drills.
If then, such piracies are valid in Japanese law, the users could not be prosecuted in Japanese Courts in China, and, unless all marks, the property of others, registered by Japanese in Japan by oversight are rendered null and void, there would appear to be no remedy against the infringement of British trade-marks not registered in Japan. At any rate, the paragraph: “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" should be struck out of Article I of the proposed Anglo-Japanese Convention; but the suggestion that its removal might be brought about by allowing Japanese time to
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