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before the Imperial Government, and I have the honour, by instruction, to submit to your Excellency some remarks of the Imperial Government on the said Memorandum.
According to the German view, it is urgently desirable that the principle be adhered to of conceding to applications for registry of trade-marks filed in branch registry offices at Tien-tsin and Shanghae only those rights which are established in Article 25 of the draft of a Chinese Trade-mark Law. This appears just, moreover, for the reason that the "Provisional Regulations," in accordance with which applications for registry of trade-marks have heretofore been made, have not yet gone into force, although they were published at the proper time. As is seen from the inclosed translation of a letter from the Imperial Chinese Government dated the 22nd December, 1904, the latter expressly declared that applications received by the branch registry offices should not be granted a right of priority, and that no registry should be made. The granting of a right of priority would involve a serious injury to the interests of those persons who, relying on the declaration of the Chinese Government, have hitherto refrained from filing their trade-marks.
The Government of the United States entertains the apprehension that trade-marks filed meantime by American citizens would, after the going into force of the new Chinese law, have to yield the precedence to those which, in accordance with Article 7 of the draft, are to enjoy a right of priority of four months, counting from their registry in a foreign country. This apprehension would appear, however, to be unfounded. As is so correctly stated in the Memorandum of the 17th February last, the provisions of Article 7 correspond to those of section 4 of the International Convention for the protection of industrial property. However, inasmuch as the legal aspect (relation) is the same, the construction which has been placed upon said section in practice by the United States would likely, in view of Article 7, lead to the result that the right of priority here established could only be asserted with regard to such foreign marks as have been registered in a foreign country after the going into force of the Chinese law. Such a construction would probably also be in conformity with the principles of American law (cf. the decision of the Patent Office in re Stiff v. Galbraith, "Official Gazette," vol. cvii, p. 2532).
Should the United States' Government deem it important to have the provisions of Article 7 supplemented by a clause to the effect that "the right of priority shall extend only to such trade-marks as have been registered in a foreign country after the going into effect of the law," the German Government would offer no objection.
I have the honour to request your Excellency to kindly consider our standpoint and reply thereto.
(Translation.)
Inclosure 3 in No. 1.
Please accept, &c. (Signed)
Prince Ching to Baron von Mumm.
STERNBURG,
Peking, December 22, 1904.
ON the 20th December, 1904, a note was received from your Excellency as follows:-
"I acknowledge, with thanks, the assurance contained in your Excellency's note of the 12th December last with regard to the law for the protection of trade-marks. However, I cannot help calling your Excellency's attention to the fact that, in my note of the 2nd instant, and in pursuance to strict instructions from my Government, I requested a delay of the law until a full agreement had been reached on all the disputed points, and that your Excellency has not yet given me a positive assurance on this point. I therefore have the honour to ask your Excellency whether I may report to my Government that the going into force of the law has been temporarily postponed until an agreement concerning the modifications to be made has been reached.”
To this I have the honour to reply that when the note which was sent in reply to your Excellency from this Ministry on the 12th December last states that since the Governments of the Powers are of the opinion that the law is not yet perfect, the Chinese Government, in its desire to strengthen friendly relations, is very willing to make changes, and with regard to the discrepancies in the text and the omissions in the various Articles, there is nothing to prevent elucidating declarations
3
being again made thereto and the necessary clauses and supplements being carefully added," this declaration is identical in meaning with the "temporary postponement of the going into force" of which your Excellency's note speaks. Therefore, until the negotiations on both sides have been concluded, no entries of any kind will be made on applications received.
Excellency,
(Signed)
Inclosure 4 in No. 1.
Mr. Root to M. von Sternberg.
PRINCE CHING.
Department of State, Washington, October 15, 1906.
REFERRING to your note of the 12th May and to this Department's acknowledgment thereof of the 30th June, I have the honour to inform you that this Government has given careful consideration to your request to withdraw the objection heretofore raised to Article 25 of the project for the protection of trade-marks in China prepared by the Representatives at Peking of Germany, France, Italy, Austria-Hungary and Great Britain.
This Government is prepared to make this withdrawal on the understanding that the German Government and the other Governments above named shall agree to the addition to Article 7 suggested by you, viz. :—“ The right of priority shall extend only to such trade-marks as have been registered in a foreign country after the going into effect of the law."
You state that the German Government would offer no objection to this addition, and it is to be presumed that it would be equally unobjectionable to the other Powers. You are requested to advise your Government that upon the acceptance of the above modification of the Regulations formulated by the Representatives of Germany, Austria-Hungary, France, Great Britain, and Italy, this Government will at once adhere thereto, and will so advise the American Minister at Peking.
Accept, &c. (Signed) ELIHU ROOT.
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291
:
2
before the Imperial Government, and I have the honour, by instruction, to submit to your Excellency some remarks of the Imperial Government on the said Memorandum.
According to the German view, it is urgently desirable that the principle be adhered to of conceding to applications for registry of trade-marks filed in branch registry offices at Tien-tsin and Shanghae only those rights which are established in Article 25 of the draft of a Chinese Trade-mark Law. This appears just, moreover, for the reason that the "Provisional Regulations," in accordance with which applications for registry of trade-marks have heretofore been made, have not yet gone into force, although they were published at the proper time. As is seen from the inclosed translation of a letter from the Imperial Chinese Government dated the 22nd December, 1904, the latter expressly declared that applications received by the branch registry offices should not be granted a right of priority, and that no registry should be made. The granting of a right of priority would involve a serious injury to the interests of those persons who, relying on the declaration of the Chinese Govora- ment, have hitherto refrained from filing their trade-marks.
The Government of the United States entertains the apprehension that trade- inarks filed meantime by American citizens would, after the going into force of the new Chinese law, have to yield the precedence to those which, in accordance with Article 7 of the draft, are to enjoy a right of priority of four months, counting from their registry in a foreign country. This apprehension would appear, however, to be unfounded. As is so correctly stated in the Memorandum of the 17th February last, the provisions of Article 7 correspond to those of section 4 of the International Con- vention for the protection of industrial property. However, inasmuch as the legal aspect (relation) is the same, the construction which has been placed upon said section in practice by the United States would likely, in view of Article 7, lead to the result that the right of priority here established could only be asserted with regard to such foreign marks as have been registered in a foreign country after the going into force of the Chinese law. Such a construction would probably also be in conformity with the principles of American law (cf. the decision of the Patent Office in re Stiff . Galbraith, Official Gazette," vol. evií, p. 2532).
Should the United States' Government deem it important to have the provisions of Article 7 supplemented by a clause to the effect that "the right of priority shall extend only to such trade-marks as have been registered in a foreign country after the going into effect of the law," the German Government would offer no objection.
I have the honour to request your Excellency to kindly consider our standpoint and reply thereto.
(Translation.)
Inclosure 3 in No. 1.
Please accept, &c. (Signed)
Prince Ching to Baron von Mumm.
STERNBURG,
Peking, December 22, 1904. ON the 20th December, 1904, a note was received from your Excellency as follows:-
"I acknowledge, with thanks, the assurance contained in your Excellency's note of the 12th December last with regard to the law for the protection of trade-marks. However, I cannot help calling your Excellency's attention to the fact that, in my note of the 2nd instant, and in pursuance to strict instructions from my Government, I requested a delay of the law until a full agreement had been reached on all the disputed points, and that your Excellency has not yet given me a positive assurance on this poiut. I therefore have the honour to ask your Excellency whether I may report to my Government that the going into force of the law has been temporarily postponed until an agreement concerning the modifications to be made has been reached.”
To this I have the honour to reply that when the note which was sent in reply to your Excellency from this Ministry on the 12th December last states that since the Governments of the Powers are of the opinion that the law is not yet perfect, the Chinese Government, in its desire to strengthen friendly relations, is very willing to make changes, and . with regard to the discrepancies in the text and the omissions in the various Articles, there is nothing to prevent elucidating declarations
3
being again made thereto and the necessary clauses and supplements being carefully added," this declaration is identical in meaning with the "temporary postponement of the going into force" of which your Excellency's note speaks. Therefore, until the negotiations on both sides have been concluded, no entries of any kind will be made on applications received.
Excellency,
(Signed)
Inclosure 4 in No. 1.
Mr. Root to M. von Sternberg.
PRINCE CHING.
Department of State, Washington, October 15, 1906.
REFERRING to your note of the 12th May and to this Department's acknowledgment thereof of the 30th June, I have the honour to inform you that this Government has given careful consideration to your request to withdraw the objection heretofore raised to Article 25 of the project for the protection of trade- marks in China prepared by the Representatives at Peking of Germany, France, Italy, Austria-Hungary and Great Britain.
This Government is prepared to make this withdrawal on the understanding that the German Government and the other Governments above named shall agree to the addition to Article 7 suggested by you, viz. :—“ The right of priority shall extend only to such trade-marks as have been registered in a foreign country after the going into effect of the law."
You state that the German Government would offer no objection to this addition, and it is to be presumed that it would be equally unobjectionable to the other Powers. You are requested to advise your Government that upon the acceptance of the above modification of the Regulations formulated by the Representatives of Germany, Austria-Hungary, France, Great Britain, and Italy, this Government will at once adhere thereto, and will so advise the American Minister at Peking.
Accept, &c. (Signed) ELIHU ROOT.
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