This Document is the Property of His Britannic Majesty's Government
CHINA TRADE,
CONFIDENTIAL.
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0.
[May 11]
SECTION 3.
LJUN 08
620
No. 1.
Sir C. MacDonald to Sir Edward Grey.-(Received May 11.)
(No. 96.) Sir,
Tokió, April 15, 1908. WITH reference to my despatch No. 241 of the 29th October, 1907, and your subsequent telegrams, I have now the honour to transmit herewith a copy Counter-draft Convention as it stands at present after the various alterations which you have instructed me to make have been effected.
of our
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In two places I have made minor alterations, viz., "China and Corea into "China or Corea" in Article 2, and "firm name and hong mark" into "firm name or hong mark" in the same Article, for which I did not think it necessary to obtain telegraphic sanction, but I have the honour to request that they may be approved.
In connection with the question conveyed in your telegram No. 23 as to whether it is possible under the Law now in force to register marks when intended for use in China and Corea but not necessarily in Japan, and also whether in such cases it would be in the power of Japanese Consular Courts to take action in case of infringe- ment, and my telegram No. 28 in reply thereto, I have the honour to inclose a Confidential Memorandum of a conversation which took place between Mr. Adachi, of the Foreign Office, and Mr. Crowe.
Mr. Adachi, before replying, consulted the Director of the Patent Bureau. It will be noticed that he said that under the Law now in force marks, even though not actually in use in Japan, may be registered by the Patent Bureau, but that under the present Law, even where marks were so registered, the Japanese Consular Courts could not take action in cases of infringement. When, however, the Convention for mutual protection of trade-marks is signed, the Consular Courts would be empowered to take action by virtue of the Convention, which would supplement the existing Law.
This is in accordance with the principle that the provisions of a Treaty have the force of law when the provisions of the Treaty do not come in conflict with the provisions of the Law.
It is possible that the Japanese Government may hold that the proposed insertion with regard to the protection in Japan of hong marks, &c., without the necessary registration, is not in conformity with the Japanese Law on the subject, but their opinion on this point cannot be definitely ascertained until our counter-draft is presented, because in the American draft Convention, as shown in my despatch No. 95 of to-day, a different attitude is taken with regard to hong marks.
The final paragraph of the Memorandum inclosed herewith was added subsequently by Mr. Adachi after further consultation with Mr. Nakamatsu, of the Patent Bureau. They felt that a difficulty might arise if, in the application for registration, it were clearly stated that a mark was to be used solely in China or Corea, as the presumption of the Patent Bureau is that, even though a mark is not in use in Japan, it will probably be used there sooner or later.
It seems unlikely, however, that any patent agent in applying for registration would go out of his way to make a statement which was not called for.
I have, &c. (Signed)
CLAUDE M. MACDONALD.
Inclosure 1 in No. 1.
Counter Draft of Convention for Reciprocal Protection of Trade-marks
in China and Coreu,
HIS Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India, and His Majesty the Emperor of Japan, being desirous of securing in China and Corea reciprocal protection
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