2
thus making the proviso similar in principle to that in our draft Convention, but this proviso is still objected to by the United States' Department.
In the margin of the Japanese Foreign Office draft relating to Corea, there is a note saying that they are also anxious to add a similar proviso with regard to Corea.
The American Department of State has in its drafts an Article under which "bong" or trade names are to be considered as trade-marks. This is marked as "under consideration by the Foreign Office." The necessity for some such provision was noted in my despatch No. 241.
Another point of difference is that with regard to the date on which the Conventions are to come into force. The Japanese drafts say ten days after exchange of ratifications; the American drafts, from the date of exchange.
The matter of ten days is not, perhaps, of so much importance, but if the period were extended to three or six months it might perhaps be accepted by the Japanese as some sort of compensation for the omission of the proviso to Article I, if that be objected to, because by extending the period for a few months the Japanese trade-mark pirates, whose interests the Japanese Government are presumably intent on protecting, would be given sufficient time in which to clear off their stocks.
The other main differences between the United States' and Japanese drafts relate chiefly to copyright, with which we at present are not actually concerned. With regard to the fact that the American Government have conceded jurisdiction in Corea as regards trade-marks, I have in the course of conversation with Count Hayashi pointed out that as the Japanese are the principal offenders in pirating trade-marks in China, Japan should be the first to enter into Convention for mutual protection, and require no quid pro quo for so doing. Count Hayashi personally admitted the correctness of my view, but said his colleagues in the Cabinet were not of his way of thinking.
A copy of this despatch and its inclosures has been forwarded to His Majesty's Minister at Peking, and a copy of the parts dealing with Corea to His Majesty's Consul-General at Seoul.
I have, &c. (Signed)
Inclosure 1 in No. 1.
CLAUDE MACDONALD.
Japanese Draft of Convention respecting Trade-marks, &c., in China.
Article 1.
Same in principle as Department draft, with the important exception of the proviso, which is objected to by the United States.
Office.
HIS Majesty the Emperor of Japan and the President of the United States of America, being desirous to secure in China reciprocal protection for the inventions, designs, trade-marks, and copyrights of their subjects and citizens, have resolved to conclude a Convention for that purpose and have appointed as their Plenipotentiaries, that is to say →→
His Majesty the Emperor of Japan,
The President of the United States of America,
; and
who, after having communicated to each other their respective full powers, found to be in good and due form, have agreed upon and concluded the following Articles:
ARTICLE I
works of literature and art, as well as photographs duly Inventions, designs, trade-marks, and copyrights of
patented or registered after this Convention takes effect” by the subjects or citizens of one High Contracting Party in the appropriate office of the other Contracting Party, Struck out by Foreign shall enjoy, in all parts of China, the same protection against infringement or misuse by the subjects or
3
citizens of such other Contracting Party, as in the country of patent or registration, provided that such protection shall not extend to any invention or design publicly known or used in China, prior to such patent or registration, nor to any trade-mark actually used by another person, or any work of literature or art as well photographs, already reproduced in China prior to such registration.
ARTICLE II.
In case of infringement or misuse in China, by a subject or citizen of one High Contracting Party, of any invention, design, trade-mark, or copyright entitled to protection as provided in the preceding Article, the aggrieved party shall have, in the competent Courts of such Contracting Party, the same rights and remedies as the subjects or citizens of such Contracting Party, without being compelled to submit to any other or more onerous conditions than such subjects or citizens.
ARTICLE III.
The mutual protection assured in the two preceding Articles, in matters relating to copyrights, does not carry with it the right to reserve the right of translation.
The provisions of this Convention concerning the mutual protection of copyright shall apply only to the works published for the first time after this Convention takes effect.
ARTICLE IV.
The present Convention shall be ratified, and the ratifications thereof shall be exchanged at Tokio as soon as possible. It shall come into operation at the expiration of ten days from the date of the exchange of the ratifications, and shall remain in force until the expiration of six months from the day on which either party may give notice of its intention to terminate the same.
In witness whereof the above-mentioned Plenipotentiaries have signed the present Convention and affixed thereto their seals.
Done in duplicate at Tokio, &c., &c.
Inclosure 2 in No. 1.
Foreign Office willing to insert the words :-
"for at least three years prior to the operation of the present Convention."
Article II. Same in principle as Department draft.
Article III. Objectionable to the United States.
† Not in Department draft.
deemed superfluous, since existing Agreements on which this visions for termination. Convention depends have pro-
United States' Draft of Convention respecting Trade-marks, &c., in China,
THE President of the United States of America, and His Majesty the Emperor of Japan, being actuated by a common desire to perfect the mutual protection of American, Japanese, and Corean copyrights, trade-marks, patents, and designs against infringement by American citizens, Japanese subjects, or Corean subjects in the Far East, and having decided to conclude a Treaty for this purpose, have named as their Plenipotentiaries :-
The President of the United States, Thomas J. O'Brien, Ambassador Extraordinary and Plenipotentiary of the United States of America to Japan; and
:
473
2
thus making the proviso similar in principle to that in our draft Convention, but this proviso is still objected to by the United States' Department.
In the margin of the Japanese Foreign Office draft relating to Corea, there is a note saying that they are also anxious to add a similar proviso with regard to Corea.
The American Department of State has in its drafts an Article under which "bong" or trade names are to be considered as trade-marks. This is marked as "under consideration by the Foreign Office.' The necessity for some such provision was noted in my despatch No. 241.
Another point of difference is that with regard to the date on which the Conven- tions are to come into force. The Japanese drafts say ten days after exchange of ratifications; the American drafts, from the date of exchange.
The matter of ten days is not, perhaps, of so much importance, but if the period were extended to three or six months it might perhaps be accepted by the Japanese as some sort of compensation for the omission of the proviso to Article I, if that be objected to, because by extending the period for a few months the Japanese trade- mark pirates, whose interests the Japanese Government are presumably intent on protecting, would be given sufficient time in which to clear off their stocks.
The other main differences between the United States' and Japanese drafts relate chiefly to copyright, with which wo at present are not actually concerned. With regard to the fact that the American Government have conceded jurisdiction in Corea as regards trade-marks, I have in the course of conversation with Count Hayashi pointed out that as the Japanese are the principal offenders in pirating trade-marks in China, Japan should be the first to enter into Convention for mutual protection, and require no quid pro quo for so doing. Count Hayashi personally admitted the correctness of my view, but said his colleagues in the Cabinet were not of his way of thinking.
A copy of this despatch and its inclosures has been forwarded to His Majesty's Minister at Poking, and a copy of the parts dealing with Corea to His Majesty's Consul- General at Seoul.
I have, &c. (Signed)
Inclosure 1 in No. 1.
CLAUDE MACDONALD.
Japanese Draft of Convention respecting Trade-marks, &c., in China.
Article 1.
Same in principle as Depart- ment draft, with the important exception of the proviso, which is objected to by the United States.
Office.
HIS Majesty the Emperor of Japan and the President of the United States of America, being desirous to secure in China reciprocal protection for the inventions, designs, trade-marks, and copyrights of their subjects and citizens, have resolved to conclude a Convention for that purpose and have appointed as their Flenipotentiaries, that is to say →→
His Majesty the Emperor of Japan,
The President of the United States of America,
; and
who, after having communicated to each other their respective full powers, found to be in good and due form, have agreed upon and concluded the following Articles :---
ARTICLE I
works of literature and art, as well as photographis duly Inventions, designs, trade-marks, and copyrights of
patented or registered after this Convention takes eftcet” by the subjects or citizens of one High Contracting Party in the appropriate office of the other Contracting Party, Struck out by Foreign shall enjoy, in all parts of China, the same protection against infringement or misuse by the subjects or
3
citizens of such other Contracting Party, as in the country of patent or registration, provided that such protection shall not extend to any invention or design publicly knowu or used in China, prior to such patent or registration, nor to any trade-mark actually used by another person, or any work or literature or art as well photographs, already reproduced in China prior to such registration.
ARTICLE IT.
In case of infringement or nisuse in China, by a subject or citizen of one High Contracting Party, of any invention, design, trade-mark, or copyright entitled to protection as provided in the preceding Article, the aggrieved party shall have, in the competent Courts of such Contracting Party, the same rights and remedies as the subjects or citizens of such Contracting Party, without being compelled to submit to any other or more onerous conditions than such subjects or citizens.
ARTICLE III.
The mutual protection assured in the two preceding Articles, in matters relating to copyrights, does not carry with it the right to reserve the right of translation.
The provisions of this Convention concerning the mutual protection of copyright shall apply only to the works published for the first time after this Convention takes effect.
ARTICLE IV,
The present Convention shall be ratified, and the ratifications thereof shall be exchanged at Tokió as soon as possible. It shall come into operation at the expira- tion of ten days from the date of the exchange of the ratifications, and shall remain in forcet until the expira- tion of six months from the day on which either party may give notice of its intention to terminate the same.
In witness whereof the above-mentioned Plenipoten- tiaries have signed the present Convention and affixed thereto their seals.
Done in duplicate at Tõkiô, &c., &c.
Inclosure 2 in No. 1.
Foreign Office willing to in- sert the words :-
"for at least three years prior to the operation of the present Convention."
Article II. Same in principle as Depart- ment draft.
Article III. Objectionable to the United
States.
† Not in Department draft.
deemed superfluous, since exist- Not in Department draft;
ing Agreements on which this visions for termination. Convention depends have pro-
United States' Draft of Convention respecting Trade-marks, &c., in China,
THE President of the United States of America, and His Majesty the Emperor of Japan, being actuated by a common desire to perfect the mutual protection of American, Japanese, and Corean copyrights, trade- marks, patents, and designs against infringement by American citizens, Japanese subjects, or Corean subjects in the Far East, and having decided to conclude a Treaty for this purpose, have named as their Pleni- potentiaries :-
The President of the United States, Thomas J. O'Brien, Ambassador Extraordinary and Plenipotentiary of the United States of America to Japan; and
:
473
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