2
If under the present law a mark could be cancelled under circumstances as detailed above, I venture to think that your Excellency will see that some assurance from the Japanese Government which would cover cases of this sort will be required before any Convention can be concluded.
(Translation.) (Confidential.)
I take, &c.
(Signed) CLAUDE M. MACDONALD,
Inclosure 2 in No. 1.
Count Komura to Sir C. MacDonald.
September 5, 1908.
I HAVE the honour to acknowledge the receipt of your Excellency's note of the 26th June, inquiring whether, in the event of a Convention being concluded between Great Britain and Japan for the mutual protection of trade-marks in China and Corea, and if His Majesty's Government agreed to accord complete reciprocity, the Japanese Government would give the protection of the Convention to the proprietors of British trade-marks registered in Japan but used only in China and Corea. Your Excellency asked as an example for an expression of opinion on the point whether, supposing that a British subject registered a trade-mark in the Japanese Patent Bureau for goods which he was dealing in Japan and China, and that he subsequently found the mark unsuited to the Japanese market and gave up using it in Japan, but continued the use of the mark in China, it would or would not be possible for an interested party to demand the cancellation of the registration of the mark under Article 12 of the Japanese Trade-mark Law, on the ground of the cessation of the business for which the mark was used by the proprietor. Your Excellency added that, supposing it were possible under the law now in force to obtain the cancellation of a registered trade-mark under the circumstances mentioned above, there would be no reason for concluding a Convention, unless an assurance were obtained from the Japanese Government which would cover such cases.
In reply, I have the honour to state that all revisions of Japanese laws require the assent of the Legislative Assembly, and the administrative Departments are quite unable to interfere therein. The interpretation of the laws is decided according to the independent opinion of the authorities concerned, who investigate any particular case. I regret, therefore, that I cannot venture to give the assurance of the Japanese Government desired by your Excellency in regard to the circumstances mentioned; but, in order to ascertain the opinion on the point of the administrative authorities concerned, I at once referred the substance of your Excellency's communication to the Minister of Agriculture and Commerce, and I am now in receipt of his reply, which is to the effect that under the Trade-mark Law at present in force in Japan it is not necessary, in obtaining registration of a trade-mark, to have a business in Japan at the time, nor does the right of exclusive use of a trade-mark expire if the trade-mark is not used, so long as the business is not ceded. As regards foreign registered trade-marks which have been registered also in Japan and are under the protection of the Japanese Trade-mark Law, the right of exclusive use of such marks does not expire even if the business and the use of the trade-mark be ceased in Japan and in places to which the protection of the Japanese Trade-mark Law extends, unless business be also ceased in the foreign country. But if a trade-mark is not a foreign registered trade-mark, but is merely a trade-mark registered by a foreigner in the same way as a Japanese in Japan only, the right of exclusive use of the mark expires with the cessation of business in Japan and places to which the protection of the Japanese Trade-mark Law extends. He considers, moreover, that the cancellation of registration due to the expiration of the right of exclusive use of a trade-mark is carried out by the official authority of the Patent Bureau in accordance with heading No. 13 of Article 14 and Article 17 of the Detailed Regulations for carrying out the Law of Trade-marks, and Article 71 of the Detailed Regulations for carrying out the Patent Law, and not by means of a legal suit or trial.
I take, &c. (Signed) KOMURA JUTARO, Minister for Foreign Affairs.
[This Document is the Property of His Britannic Majesty's Government.]
CHINA TRADE.
CONFIDENTIAL.
[34149]
No. 1.
[October 3.]
SECTION 4.
Sir J. Jordan to Sir Edward Grey.-(Received October 3.)
(No. 374.) Sir,
Peking, August 19, 1908. IN continuation of my despatch No. 336 of the 21st July, I have the honour to report that the question of the levy of li-kin on the Shanghae-Nanking Railway still remains unsettled.
On the 25th July the Board of Communications notified Mr. Bland, in writing, that instructions had been issued by the Revenue Council for the provisional issue of exemption certificates to cover duty-paid imports carried by the railway from one Treaty port to another.
To this Mr. Bland replied on the 29th July that, according to a telegram he had just received from Shanghae, permission to send goods under exemption certificate by the railway was still being refused, the Commissioner of Customs stating that the delay was due to opposition from the Viceroy of Nanking.
In a letter dated the 31st July from Messrs. Jardine, Matheson, and Co. to Mr. Bland, this statement regarding the Viceroy's opposition was confirmed; but, in replying on the 12th August to telegraphic inquiries made by me on the previous day, His Majesty's Consul-General stated that the rules proposed by the Imperial Maritime Customs had only been submitted to the Viceroy and the Acting Inspector-General on the 31st July, and that the delay was due to the fact that the Commissioner at Shanghae had been obliged to collaborate with his colleagues in Soochow, Chinkiang, and Nanking in drawing up his proposals.
On receipt of this information I immediately addressed a further note to Prince Ching, copy of which I have the honour to inclose, in which I again notified the Chinese Government that they would be held responsible for any claims arising out of this denial of a Treaty right.
As regards the observation contained in your despatch No. 313 of the 7th July regarding the contention of the Wai-wu Pu that the conditions under which rail-borne and water-borne goods are transported are not the same, the Board doubtless had in mind the fact that, while the system of exemption certificates was primarily introduced to meet the requirements of interport trade by steamer, special Regulations were found necessary to meet the case of interport traffic by the Lu-Han and Northern Railways in order to protect the revenue from losses by the discharge of goods at intermediate stations which are not Treaty ports.
Your Highness,
Inclosure in No. 1.
I have, &c. (Signed) J. N. JORDAN,
Sir J. Jordan to Prince Ching.
Peking, August 13, 1908. WITH reference to previous correspondence and repeated conversations on the subject of exemption certificates for goods carried by the Shanghae-Nanking Railway from one Treaty port to another, I regret to inform your Highness that, in spite of the assurances, both written and verbal, which the Board has given me for months past that these certificates would be issued by the Imperial Maritime Customs, the Commissioner at Shanghae still remains without authority to issue exemption certificates even for foreign goods.
From a telegraphic report of His Majesty's Consul-General, dated yesterday, I learn that the delay has been due to the fact that the Commissioner at Shanghae was instructed to consult with his colleagues at other ports along the railway, and that the proposed rules were only submitted to the Viceroy at Nanking and the Acting Inspector-General of Customs on the 31st July.
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