[This Document is the Property of His Britannic Majesty's Government]
CHINA TRADE.
CONFIDENTIAL.
5508
[November, 2012 08
SECTION 3.
[38636]
No. 1.
Sir C. MacDonald to Sir Edward Grey.-(Received November 25.)
(No. 241.) Sir,
Tokio, October 29, 1907.
WITH reference to my telegram No. 47 of yesterday's date, I have the honour to transmit herewith translation of a note from the Minister for Foreign Affairs, inclosing a draft Convention on the subject of the mutual protection of trade-marks in China, and a second draft Convention dealing with the protection of British trade-marks in Corea and Corean trade-marks in the United Kingdom. I have, further, the honour to transmit a copy of a Memorandum drawn up by the Commercial Attaché to this Embassy, containing some observations on the former of these drafts.
It will be observed that in his covering note Count Hayashi makes no reference to the nature of these drafts, but lays great stress on the necessity of inducing the Chinese Government to put in force their revised Trade-marks Regulations with as little delay as possible.
Sir John Jordan, on the other hand, in a despatch to me dated the 1st June last, expressed his opinion very strongly to the effect that a Convention with Japan should precede the enforcement of the new Chinese Regulations, and did not consider that the Japanese fears of Chinese imitators were well founded or altogether ingenuous.
It will be seen from Mr. Crowe's Memorandum that he is of opinion that the Japanese Government cannot, in the present state of Japanese law, bind itself to protect in China any marks not registered in Japan, but that, owing to the operation of the Merchandize Marks Act applied to Japan by Order in Council, it might be held that the British authorities were bound to protect Japanese marks which have not been registered in the United Kingdom. If this view should be correct, the necessity of paragraph 2 of Article I is apparent; but it should be understood that this paragraph applies solely to those persons who can establish the right of user in China for three or more years prior to the operation of this Convention for marks which have not been registered in Japan by British owners or vice versa.
On the other hand, if it is held that the Merchandize Marks Act does not apply to this Convention, Mr. Crowe considers the paragraph in question as doing more harm than good, and he suggests the insertion of a paragraph to cover such cases as that of the piracy of Sir E. Armitage's "Crocodile" mark, which has been the subject of previous correspondence.
Mr. Crowe finally points out the necessity for some protection being afforded to "Hong" names, and also expresses a doubt as to whether all colonial subjects would be protected by the Convention, whether the States to which they belong have adhered to the Anglo-Japanese Treaty or not.
Turning to the draft Convention concerning Corea, it will be observed that not only do its proposals amount to a complete renunciation of extra-territorial jurisdiction on the part of His Majesty's Government in all questions respecting trade-marks, but that they contain no mention whatever of the Corean authorities. British subjects are to be amenable in such matters, both civilly and criminally, to the Japanese Courts, and are to be bound by any trade-marks regulations, the nature of which is quite unknown, which may be put in force in Corea.
It should be mentioned that no reference whatever to Corea was made in the note which I addressed to Count Hayashi in accordance with the instructions contained in your despatch No. 121 of the 31st May last, though it is true that Corea was mentioned in the communications which passed on the subject in 1905; nor has Count Hayashi ever mentioned the subject to me in my numerous conversations with him respecting the protection of trade-marks in China. Under these circumstances it is somewhat remarkable that proposals of so drastic a nature should be presented without any comment in the note which covers them, and it would almost appear that the Japanese Government intend to make their signature of a Convention for the mutual protection of trade-marks in China dependent upon our acceptance of their proposals regarding Corea. I am not aware whether His Majesty's Government will consider these proposals favourably or not, but I am of opinion that the two drafts should be treated...
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[This Document is the Property of His Britannic Majesty's Government, }
CHINA TRADE.
CONFIDENTIAL.
5508
[November, 2012 08
SECTION 3.
[38636]
No. 1.
Sir C. MacDonald to Sir Edward Grey.-(Received November 25.)
(No. 241.) Sir,
Tokid, October 29, 1907. WITH reference to my telegram No. 47 of yesterday's date, I have the honour to transmit herewith translation of a note from the Minister for Foreign Affairs, inclosing a draft Convention on the subject of the mutual protection of trade-marks in China, and a second draft Convention dealing with the protection of British trade-marks in Corea and Corcan trade-marks in the United Kingdom. I have, further, the honour to transmit a copy of a Memorandum drawn up by the Commercial Attaché to this Embassy, containing some observations on the former of these drafts.
It will be observed that in his covering note Count Hayashi makes no reference to the nature of these drafts, but lays great stress on the necessity of inducing the Chinese Government to put in force their revised Trade-marks Regulations with as little delay as possible.
Sir John Jordan, on the other hand, in a despatch to me dated the 1st June last, expressed his opinion very strongly to the effect that a Convention with Japan should precede the enforcement of the new Chinese Regulations, and did not consider that the Japanese fears of Chinese imitators were well founded or altogether ingenuous.
It will be seen from Mr. Crowe's Memorandum that he is of opinion that the Japanese Government cannot, in the present state of Japanese law, bind itself to protect in China any marks not registered in Japan, but that, owing to the operation of the Merchandize Marks Act applied to Japan by Order in Council, it might be held that the British authorities were bound to protect Japanesc marks which have not been registered in the United Kingdom, If this view should be correct, the necessity of paragraph 2 of Article I is apparent; but it should be understood that this paragraph applies solely to those persons who can establish the right of user in China for three or more years prior to the operation of this Convention for marks which have not been registered in Japan by British owners or vice versá.
On the other hand, if it is held that the Merchandize Marks Act does not apply to this Convention, Mr. Crowe considers the paragraph in question as doing more harm than good, and he suggests the insertion of a paragraph to cover such cases as that of the piracy of Sir E. Armitage's "Crocodile" mark, which has been the subject of previous correspondence.
Mr. Crowe finally points out the necessity for some protection being afforded to "Hong" names, and also expresses a doubt as to whether all colonial subjects would be protected by the Convention, whether the States to which they belong have adhered to the Anglo-Japanese Treaty or not.
Turning to the draft Convention concerning Corea, it will be observed that not only do its proposals amount to a complete renunciation of extra-territorial jurisdiction on the part of His Majesty's Government in all questions respecting trade-marks, but that they contain no mention whatever of the Corean authorities. British subjects are to be amenable in such matters, both civilly and criminally, to the Japanese Courts, and are to be bound by any trade-marks regulations, the nature of which is quite unknown, which may be put in force in Corea.
It should be mentioned that no reference whatever to Corea was made in the note which I addressed to Count Hayashi in accordance with the instructions contained in your despatch No. 121 of the 31st May last, though it is true that Corea was mentioned in the communications which passed on the subject in 1905; nor has Count Hayashi ever mentioned the subject to me in my numerous conversations with him respecting the protection of trade-marks in China. Under these circumstances it is somewhat remarkable that proposals of so drastic a nature should be presented without any comment in the note which covers them, and it would almost appear that the Japanese Government intend to make their signature of a Convention for the mutual protection of trade-marks in China dependent upon our acceptance of their proposals regarding Corea. I am not aware whether His Majesty's Government will consider these proposals favourably or not, but I am of opinion that the two drafts should be treated
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