CO129-344 - Public Offices & Foreign Office - 1907 — Page 133

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TRADE-MARK REGULATIONS,

Regulation I.-Conditions to which Trade-marks must conform.

Article 5. "6 Whenever more than one application is made for trade-marks closely resembling each other and covering a similar class of goods on identical dates and at the same hour, none of such applications can be entertained."

"until the several claimants shall have been To this Article should be added: given an opportunity to state their case, and their rights have been determined by law."

This is apparently what is meant by Article 53 (iv), but the question then arises, is the constitution of the Court of Judicial Decisions such as foreigners can rely upon for the safeguarding of their rights?

Regulation III.-Public Notification of Trade-marks.

as fulfilling the Article 9. "Trade-marks passed by the inspecting officer prescribed requirements shall be published forthwith in the 'Trade-marks Gazette' for general information."

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This appears to conflict with Regulation V, Article 22, which provides that a block of every trade-mark shall be furnished when a trade-mark is sanctioned, and follows. That is that, after registration is completed, publication in the "Gazette to say, while Article 9, Regulation III, calls for publication in advance of registration, Article 22, Regulation V, demands it after; moreover, the necessary block is not demanded until the mark has already appeared in the "Gazette." It may be pointed out that, according to English rules, no blocks are required for marks registered in the Cotton Classes 23, 24, 25 (Sebastian, folio 46, paragraph 20).

Article 10. "If within six months of the date of publication in the 'Trade-marks Gazette' any inaccuracy be discovered in the Gazette,' a protest of such inaccuracy must be forwarded in duplicate to the Trade-marks Bureau."

Article 13. "The duplicate copy of a protest of inaccuracy shall be forwarded to the original applicant by the Trade-marks Bureau.'

It is not clear here what is meant; presumably the applicant would be the only person who could discover inaccuracies, but as the applicant is notified of any inaccuracies which may be found, he is evidently not referred to as the person to make a protest.

Regulation VI.--Trade-mark Rights.

Article 27. "The rights of trade-mark indicate exclusive use of such mark by one person."

For "

person "it is suggested that "person, firm, or corporate body" be substituted.

Regulation VII.-Transfer of Trade-mark Rights.

Articles 29-32. Whereas, in the English Trade-marks Rules, 1890, Rules 36-40 (Sebastian, folio 409), all that is required is to have the change of ownership recorded on the register, after satisfying the Controller as to title, the Chinese draft Regulations require the assignment to be also recorded on the certificate. This entails an enormous amount of unnecessary work, which is reflected in the scale of fees, referred to later.

In view of the frequent changes of firm names in China, it is a matter of no little importance that transfers of trade-mark rights should be simplified and cheapened as much as possible.

Regulation VIII.-Time Limit of Validity of Trade-marks.

Article 34. Two months previous to the expiry of the time limit the Trade- marks Bureau shall publish the name and address of the proprietor in the "Trade- marks Gazette.'

As it is in many cases necessary to exchange letters hetween agents and pro- prietors at home regarding renewal, to obtain fresh copies of marks a period of two months before expiry is insufficient, and it is suggested that "six months" substituted for "two months,"

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Article 35. "Persons desiring to renew a trade-mark must address an application for renewal of their trade-mark rights to the Trade-marks Bureau one month before the expiry of the time limit."

With regard to this, it may be pointed out that Regulation XI, Article 64 (1) states that cancellation of rights ensues if application for renewal be not made two months before the expiry of the time limit."

Regulation IX.--Confirmation of the Rights of Applicants,

Article 53. The Sub-Committee would like to know whether the Rules for Judicial Decisions apply to cases brought by foreigners against Chinese, If so, what is the constitution of the Court? Presumably it is the Mixed Court.

Regulation XI.-Cancellation of Trade-mark Rights.

Article 64 (3) is to the effect that cancellation ensues when, previous to the expiry of the prescribed number of years, a business is closed.

This expression "when a business is closed

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is vague, and requires amplification in order to make the meaning clear, and it is open to question whether the insertion of this clause serves any useful purpose. No indication is given as to the exact time

at which the proprietor loses his rights, nor is any provision made for notice being given for the benefit of those to whom proprietary rights may accrue upon the "closing of a business." There appears to be no equivalent of this in the English Trade- marks Rules, 1890.

Article 65. Upon failure to comply with any of the conditions detailed in the preceding Article, all trade-marks certificates must be given back."

Presumably what is meant is that cancellation of rights entails surrender of certificate previously granted, but so long as the cancellation is recorded in the register the certificate is rendered valueless, whether surrendered or not, and this Article seems to be superfluous.

Detailed Rules for the Enforcement of the Trade-marks Regulations.

Rule 1.-Application Forms.

Article 2 states that these shall be stocked in the various branch offices, so that they may be resold to applicants.

The Sub-Committee is of opinion that all forms required in connection with registration of trade-marks should be supplied free of charge, as is customary in Government offices when fees are charged.

Rule III.-Branch Offices.

Article 2. ** Application forms, stamps, and the Trade-marks Gazette' shall be kept on sale at all branch offices.”

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In conformity with the opinion expressed in the previous paragraph, the words application forms" should be eliminated from this Article.

Rule IV.-The Trade-marks Gazette."

Article 12. The provision made here for the publication of trade-marks the registration of which has been sanctioned should be read in conjunction with Regulation III, Article 9, already referred to, and which calls for publication before registration has been sanctioned unless the purport of the Article has been mis- understood.

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