[This Document is the Property of His Britannic Majesty's Government]
CHINA TRADE.
CONFIDENTIAL.
[43523]
No. 1.
[February 2.]
SECTION 2.
Sir,
Foreign Office to Board of Trade.
Foreign Office, February 2, 1907. WITH reference to my letter of the 22nd ultimo, I am directed by Secretary Sir E. Grey to transmit to you a copy of a despatch from His Majesty's Minister at Peking, forwarding correspondence with Messrs. A. Rose and Company on the subject of the piracy for use in China of the "crocodile" mark of Sir Elkanah Armitage and Sons (Limited) by a Japanese merchant in Osaka.
I am to offer the following observations :--
It is understood that certain countries, including Japan, allow a person to register
a trade-mark that has not been registered before, irrespective of the fact that that mark, though not registered, has been in constant use by some one else in the country. This procedure is based on the principle that the owner of a mark should register it if he wants to protect it; and if he does not think it worth while to register, it he only is to blame if some other person does so.
It would appear that the only remedy is the conclusion of an International Agreement for insuring that no person shall be allowed to register a mark in use by some other person,
No doubt the mark belonging to Sir Elkanah Armitage and Sons, referred to in this despatch, had not been registered in Japan. Probably the owner did not export goods to that country, and therefore did not think it worth while to register; and so long as they did not want to send goods to Japan the firm have probably not suffered any loss.
A different situation, however, arises if the piratical registration of the mark in Japan is to be made the basis of a claim for legalizing the abuse of the mark in China, by putting forward a claim that it is a Japanese mark; and it appears possible to Sir E. Grey that in this connection Sir J. Jordan may have somewhat misunderstood the present position. As the Board are aware, negotiations were opened with Japan for the conclusion of an Agreement for the mutual protection in China by Japan and Great Britain of each others trade-marks. These negotiations were suspended, but will be resumed as soon as His Majesty's Government are in a position, as desired by the Japanese Government, to dispense with the Minister's consent in the case of Japanese prosecutions in British Courts.
No Agreement, therefore, at present exists, but if an arrangement on the subject were made, and were of the normal type, both countries would claim to protect the "crocodile" trade-mark, i.e., both countries would decline to prevent their nationals from using it. The only remedy seems to be for traders to register their marks, even in foreign countries to which they are not exporting goods.
Sir E. Grey will be glad if the Board will favour him with their views on the points raised by the inclosed correspondence and in this letter.
I am, &c. (Signed) F. A. CAMPBELL.
* Sir J. Jordan, No. 409, November 13, 1906.
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