He confidentially showed me the text of the reprimand which had been addressed to the Foreign Office by the Cabinet Council in respect to the former Concession of three years.
With the omission of the words "patents, designs, and copyrights" throughout, he believes the drafts would be acceptable as presented by the Embassy.
Another reason that had some weight was the fact that the subject of a Cabinet change was constantly agitated, and he feared that such changes might affect the negotiations unfavourably by at least causing further delay. The attitude of the present Minister of Agriculture and Commerce was exceedingly favourable, and a change in that Ministry might be to our disadvantage.
He stated that, in connection with the signing of the Convention, the Japanese Government would desire an assurance that we would join in inducing China to adopt suitable laws for the protection of trade-marks and industrial properties. In this connection I asked if the Japanese Government would be willing, either by exchange of notes or by Protocol, to give an assurance in the sense of my conversation with Mr. Nakamatsu, to the effect that Japan would do all in its power, by administrative measures, to prevent and correct fraudulent registrations of trade-marks. Mr. Adachi promised to consider this. He himself looked upon the proposal with favour.
(Signed) R. S. MILLER,
Japanese Secretary of American Embassy.
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precedent for making patents and designs the subject of a Convention in the countries where territorial rights obtain. Finally, the interests of neither the United States nor Japan as to patents in China are as yet important. It is therefore considered rather unnecessary to make them the subject of a Convention at this time. It is hoped that the United States' Government will agree to postpone that question and hasten the conclusion of the Convention concerning only trade-marks.
It is believed that conditions as to the registration of pirated trade-marks in Japan are not as bad as has been represented, and that the administrative measures above mentioned will enable the bureau to rectify any serious infringements pending more effective future legislation. The recent utterance of the Minister of Agriculture and Commerce shows that the Government is now giving the subject earnest consideration.
March 14, 1908.
Inclosure 3 in No. 1.
Minute of Conversation with Mr. Nakamutsu, March 10, 1908.
THEORETICALLY, in Japan, Treaty may have the force of law, but, as a matter of practice, the Courts would probably decide that Treaty provisions which are contrary to the provisions of law cannot be enforced. Therefore, in order to avoid this legal question, the Japanese Government makes a practice of modifying their legislation prior to the operation of the Treaty when the provisions of the two are in conflict.
It is too late to introduce an amendment of the Trade-mark Law in the present Session of the Diet, but the Director thinks that the Government has in mind a revision of the Law in the next Session.
For the present it is hoped by administrative measures to correct any of the abuses in connection with the registration of trade-marks. It is the intention of the Bureau to give the widest possible construction to the provisions of Article 11, section 3, and Article 40, section 1, of the present Trade-mark Law, and to refuse to register any trade-marks which are designed to deceive the public, or which contain any misrepresentation as to the place of origin.
In the case of trade-marks already registered, the same rule will be applied, and if such trade-marks are found to be designed to deceive the public they will be cancelled by the Bureau. An applicant for registration who finds that his mark has been previously registered by another may produce evidence to prove that the registered trade-mark is not proper and is of a nature to deceive the public; and if the Bureau, upon examination, finds the claim to be established, they will cancel the registered mark, no matter how long it may have been registered.
The Patent Bureau, as a matter of principle, is in favour of making no restriction as to the scope of the operation of the proposed Convention; on the contrary, it endeavours to encourage free and fair competition, and spares no effort to prevent fraudulent methods. As a matter of fact, however, the alteration of existing conditions without due notice would be an injustice to those of its nationals who might have large stocks of goods on hand. If this difficulty can be overcome by granting one year or some reasonable time to the interested persons to dispose of their goods or of their trade-marks attached thereon, the Government would be willing to withdraw the proviso as to three years' use.
The proposal to separate patents and trade-marks for the purposes of the Convention is partly a matter of principle and partly of expediency. In the first place, trade-marks are different in their nature from patents in that the tendency is to regard the former as personal rights, whereas the latter (patents) are treated as territorial rights and limited by the territory of the country by which they are issued. Secondly, there is no
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