2
from any priority arising from the fact of such registration; and the day after the new Regulations of the present project became effective, if each of these American firms shall file application for registration of these marks, it may meet upon that day a demand of registration filed by a subject or citizen of one of the European Powers named, whose demand, filed that day, will be entitled to a priority of four months by reason of a demand of registration filed within that period in some European trade mark registry bureau.
In such case the actual legal right already secured and vested in this American firm by reason of its prior actual registration under the provisional Regulations in China is destroyed, while an effective and controlling priority will be given by virtue of section 7 to this European competitor, whose registration in Europe has been effected in Europe many months later, for it is to be observed that this project is to take effect one year after its publication in the "Gazette" of Peking.
The priority provisions of section 7 correspond to the priority provisions of the International Convention for the Protection of Industrial Property, and are intended to furnish a limited working period within which any unjust advantage derived from geographical proximity may be overcome. I am not disposed to question the general utility of this kind of delayed priority, but its value and existence bear no possible relation to the concomitant demand embodied in section 25 that the existing property rights of American citizens should be struck down,
This Government can see no ground for apprehension on the part of other Powers that there will be grave dangers for their trade interests if section 25 is omitted. On the other hand, grave dangers may be feared to the financial interests of the twenty American firms heretofore referred to if their existing rights be swept away by section 25 of the project. This Government propose as an amendment to section 25 the following:
"All demands of registration made by means of the competent Chinese authorities before the going into force of the present Regulation shall be considered as assimilated to the right of priority provided by section 7, and shall be effective from their dates."
I have, &c. (Signed) ELIHU ROOT.
2161
[This Document is the Property of His Britannic Majesty's Government.]
CHINA TRADE,
CONFIDENTIAL.
[6599]
C.O.
11556
[B]
[March 2
SHOTION REC 3 APR OE
No. 1.
Sir Edward Grey to Count Metternich.
Your Excellency,
Foreign Office, March 23, 1906. WITH reference to our recent conversations respecting the mutual protection of British and German trade-marks in China, I have the honour to state that under the Order in Council of the 2nd February, 1899, it is open to a German whose trade-mark has been infringed by a British subject in China to take proceedings against the latter in the British Court, provided—”
(1.) That the consent in writing of His Majesty's Minister or Chargé d'Affaires be obtained to the prosecution; but
(2.) Such consent may be withheld unless His Majesty's Minister or Chargé d'Affaires is satisfied that effectual provision exists for the punishment in the German Consular Court of German subjects infringing British trade-marks.
I have the honour to inform your Excellency that it is not open to doubt that in practice the consent of the British Minister would be given in any and every case where full reciprocity could be and was granted by Germany.
His Majesty's Representative at Peking will be instructed accordingly, as soon as the German Government inform His Majesty's Government that it is open to British subjects to take proceedings before the German Consular Courts in China against persons subject to German Consular jurisdiction who infringe trade-marks duly registered in Germany, and that the German Consuls in China have received instructions in that sense.
I have, &c. (Signed) EDWARD GREY.
[1906 - -1]
2
from any priority arising from the fact of such registration; and the day after the new Regulations of the present project became effective, if each of these American firms shall file application for registration of these marks, it may meet upon that day a demand of registration filed by a subject or citizen of one of the European Powers named, whose demand, filed that day, will be intitled to a priority of four months by reason of a demand of registration filed within that period in some European trade mark registry bureau.
In such case the actual legal right already secured and vested in this American firm by reason of its prior actual registration under the provisional Regulations in China is destroyed, while an effective and controlling priority will be given by virtue of section 7 to this European competitor, whose registration in Europe has been effected in Europe many months later, for it is to be observed that this project is to take effect one year after its publication in the "Gazette" of Peking.
The priority provisions of section 7 correspond to the priority provisions of the International Convention for the Protection of Industrial Property, and are intended to furnish a limited working period within which any unjust advantage derived from geographical proximity may be overcome. 1 am not disposed to question the general ntility of this kind of delayed priority, but its value and existence bear no possible relation to the concomitant demand embodied in section 25 that the existing property rights of American citizens should be struck down,
This Government can see no ground for apprehension on the part of other Powers that there will be grave dangers for their trade interests if section 25 is omitted. On the other hand, grave dangers may be feared to the financial interests of the twenty American firms heretofore referred to if their existing rights be swept away by section 25 of the project. This Government propose as an amendment to section 25 the following:
"All demands of registration made by means of the competent Chinese authorities before the going into force of the present Regulation shall be considered as assimilated to the right of priority provided by section 7, and shall be effective from their dates."
I have, &c. (Signed) ELIHU ROOT.
2161
[This Document is the Property of His Britannic Majesty's Government.]
CHINA TRADE,
CONFIDENTIAL.
[6599]
C.0.
11556
[B]
[March 2
SHOTION REC 3 APR OE
No. 1.
Sir Edward Grey to Count Metternich.
Your Excellency,
Foreign Office, March 23, 1906. WITH reference to our recent conversations respecting the mutual protection of British and German trade-marks in China, I have the honour to state that under the Order in Council of the 2nd February, 1899, it is open to a German whose trade-mark has been infringed by a British subject in China to take proceedings against the latter in the British Court, provided—”
(1.) That the consent in writing of His Majesty's Minister or Chargé d'Affaires he obtained to the prosecution; but
(2.) Such consent may be withheld unless His Majesty's Minister or Chargé d'Affaires is satisfied that effectual provision exists for the punishment in the German Consular Court of German subjects infringing British trade-marks.
I have the honour to inform your Excellency that it is not open to doubt that in practice the consent of the British Minister would be given in any and every case where full reciprocity could be and was granted by Germany.
His Majesty's Representative at Peking will be instructed accordingly, as soon as the German Government inform His Majesty's Government that it is open to British subjects to take proceedings before the German Consular Courts in China against persons subject to German Consular jurisdiction who iufringe trade-marks duly registered in Germany, and that the German Consuls in China have received instructions in that sense.
I have, &c. (Signed) EDWARD GREY.
[1906 - -1]
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