The idea of this Protocol was first mooted at an interview between Mr. R. S. Miller, of the United States' Embassy, and Mr. Adachi, of the Foreign Office, copy of the Minutes of which I have the honour to inclose. This inclosure also sets forth the principal reasons given by the Foreign Office in explanation of their request that the Convention should be limited to trade-marks alone.
I have, &c.
(Signed) CLAUDE M. MACDONALD.
Inclosure 1 in No. 1.
Draft of Convention between the United States and Japan.
THE President of the United States of America, His Majesty the Emperor of Japan, acting also in the name and upon the authority of His Majesty of Corea, being actuated by a common desire to perfect the mutual protection of American, Japanese, and Corean copyrights, trade-marks, patents, and designs against infringement by American citizens, Japanese subjects, or Corean subjects in the Far East, and having decided to conclude a Treaty for this purpose, have named as their Plenipotentiaries-
The President of the United States, Thomas J. O'Brien, Ambassador Extraordinary and Plenipotentiary of the United States of America to Japan; and
His Majesty the Emperor of Japan, the Count Hayashi, &c., His Imperial Majesty's Minister for Foreign Affairs;
Who, having reciprocally communicated their full powers, found to be in good and due form, have agreed upon the following
ARTICLE I.
Copyright, trade-mark, patent, and design Regulations, similar to those of Japan, are to be adopted and enforced in Corea, and those Regulations are to be binding equally upon American citizens and Japanese subjects in Corea and upon Corean subjects.
ARTICLE II.
The Government of the United States engages that in cases of the infringement by American citizens of copyrights, trade-marks, patents, or designs as protected in Corea in pursuance of this Treaty, such citizens shall in those respects be under the exclusive jurisdiction of the Courts of the Japanese Residency-General and Residencies in Corea, the extraterritorial jurisdiction of the United States being waived in these particulars.
ARTICLE III.
Corean subjects shall enjoy in the United States the protection of copyrights, trade-marks, patents, and designs in accordance with the laws of the United States.
ARTICLE IV.
The registration in Japan of copyrights, trade-marks, patents, and designs prior to the signing of this Treaty, or prior to the promulgation of the Regulations for Corea hereinbefore mentioned, and the opening of the offices for registration in Corea, shall have the same effect in Corea as if originally made in respect to that country and its subjects, as well as to American citizens and Japanese subjects in Corea.
ARTICLE V.
The "hong" or trade names of the citizens or subjects of the High Contracting Parties shall be considered to be trade-marks for the purposes of this Treaty.
ARTICLE VI.
Copyrights, trade-marks, patents, and designs registered by citizens or subjects of one Contracting Party in an appropriate office of the other Contracting Party shall enjoy in China the same protection against infringement by citizens or subjects of the latter party as in the country of registration.
ARTICLE VII.
In cases of infringement in China by the citizens or subjects of one Contracting Party of any copyright, trade-mark, patent, or design entitled to protection in virtue of this Treaty, the aggrieved parties shall have, in the competent extraterritorial Courts in China and in the competent Courts of such Contracting Party, the same rights and remedies as citizens or subjects of such Contracting Party.
ARTICLE VIII.
The Imperial Japanese Government engages on behalf of Corea that this Treaty shall have in China the same effect upon Corean as upon Japanese subjects.
ARTICLE IX.
It is furthermore mutually agreed between the High Contracting Parties that the provisions of the present Treaty shall be enforced correspondingly and so far as applicable in other countries where the United States and Japan may exercise extraterritorial jurisdiction.
All rights growing out of the present Treaty will be respected in the insular or other possessions or leased territories of the High Contracting Parties, and all legal remedies arising from the infringement of such rights will be duly enforced by the competent Courts.
ARTICLE X.
The present Treaty shall be ratified, and the ratifications thereof shall be exchanged at Tokió as soon as possible. The Treaty shall be in force from the date of the exchange of ratifications.
In faith whereof we, the respective Plenipotentiaries, have signed this Treaty and have hereunto affixed our seals.
Done in duplicate at Tôkiò, in the English and Japanese languages, this day of the month of the year 1908, corresponding to the 41st year of Meiji.
Inclosure 2 in No. 1.
Memorandum respecting Interview between Mr. Miller and Mr. Adachi.
AT an interview yesterday with Mr. Adachi he handed me a Minute of my conversation with Mr. Nakamatsu held on the 10th March, as revised by Mr. Nakamatsu. A copy of the revised Minute is attached hereto, the principal point of difference being in regard to the proposal to separate trade-marks from patents, designs, and copyrights, for the purposes of the Convention.
Mr. Adachi stated that there were strong reasons why they preferred to treat trade-marks separately from the other subjects mentioned. One was that the negotiations with other Powers related only to trade-marks. The second, and more important, was that in view of the fact that the Departments of Foreign Affairs and Agriculture and Commerce were disposed to yield as to the three-year proviso in Article I, they expected to meet considerable obstruction and delay in the Cabinet Council, which had already disapproved of their conceding even the three-year period; and in view of this circumstance, while they had hopes of putting through the Convention relating to trade-marks without the proviso referred to, he feared very much that it would take a long time to persuade the Council to accept the American drafts as a whole. The Cabinet Council regarded each subject of the Convention, namely, trade-marks, patents, designs, and copyrights, as a separate Concession.
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