105
2
There is apparently no remedy in this case, as the manufacturers are generally clever enough to protect themselves by the legend "made in Japan," which of course means nothing to a Japanese who cannot read English.
As regards the remedy against the above five classes of imitations in China, it is to be presumed that any Convention made between Great Britain and Japan for the mutual protection of trade-marks would only afford to British trade-marks the protection to which they are entitled in Japan, and consequently only those imitations which can be stopped in Japan could be stopped in China.
It becomes of interest, therefore, to study the various cases of infringements which have been mentioned in Sir J. Jordan's despatches.
In the first place, Mr. Little's statement that "it seems most unlikely that the Japanese would use imitated marks in Shanghae or the coast ports" (Shanghae despatch of the 20th November, 1907), is difficult to understand, seeing that in Yokohama one can in half-an-hour's walk collect from ten to twenty imitated marks.
As regards Price's candles it is not at all certain that an action would be successful in the Courts, for the two labels, although sufficiently alike to deceive a Chinaman, would probably be found by a Japanese judge to differ materially.
The same remark applies to the cigarettes.
Imitations of Chesterman's tape-measure are being sold in Yokohama also, though they appear to be of better quality than those sold in Hankow.
Imitations of scents and soaps are so common in Japan that it is not surprising to find them in China. Worcester sauce has also been so frequently imitated here that one shop had no less than five varieties.
It would appear therefore that, even though a Convention were signed for the mutual protection of trade-marks, most of the imitations which have been quoted by His Majesty's Consuls in China would not necessarily cease, for the following reasons:-
(1.) That Japanese law and Japanese public opinion do not recognize the making and selling of pseudo-foreign goods as an offence; and
(2) That British merchants and manufacturers are too apathetic, often neglecting to register their marks, or, in cases where they have registered them, hesitating to spend the money necessary for finding and prosecuting an offender. This hesitation is no doubt partially traceable to a lack of confidence in Japanese Courts.
I have, &c.
(Signed)
CLAUDE M. MACDONALD,
3
The statement of Mr. Little, that imitations are not likely to be found in Shanghae, is rather remarkable, because if that were the case one would expect Tôkiô and Yokohama to be similarly free from them, whereas, as a matter of fact, one can easily collect several specimens in a half-hour's stroll.
The principal offenders, numerically, are the people who get up their goods in foreign style, and whose name and address appear only in Roman letters, but whose marks are not apparently colourable imitations of well-known foreign ones.
So long as there is no law which compels these persons to mark their goods "made in Japan in Japanese characters, they apparently are no worse, from a moral point of view, than the makers of ready-made guinea suits who guarantee a Bond Street cut.
Once a mark is actually imitated, however, the position of course changes. It is then possible to prosecute the offender, but it must be remembered that, according to the Japanese Trade-mark Law, no cognizance is taken of an offence until criminal proceedings are instituted by the injured party.
As the foreign merchants in Japan show a certain amount of apathy as regards the institution of criminal proceedings, thus encouraging the trade-mark pirate to continue in his nefarious ways, it is within the bounds of possibility that the British merchant in China will not display any greater energy in seeking the protection which would be accorded to them by the proposed Convention.
This apathy is no doubt attributable to a great extent to lack of confidence in Japanese Courts, the justification of which is to be found in the result of cases like that of Buchanan's "Black and White" whisky.
Decisions favourable to foreigners are, however, sometimes given, and would probably increase in frequency were a Trade-marks Defence League formed, which would fight all similar cases.
I fully agree with you that British merchants in China are justified in objecting to the dishonest imitation of their wrappers and marks, and I hope that if, and when, a Convention for the protection of their trade-marks is signed, they will take the necessary steps to invoke that protection.
I am sending a copy of this despatch to the Foreign Office,
I have, &c.
(Signed) CLAUDE M. MACDONALD.
P.S.-It may be as well to point out that the match-box sent by Mr. Fraser is not an imitation. The two misprints mentioned by him, "Rub lichtly" and "Ohober 3 ro," occur on unmistakably genuine boxes of Bryant and May's matches, boxes which are sold by the largest English firm of this class (Messrs. Lane and Crawford) in Japan, who are prepared to make an affidavit that they are genuine.
C. M. MACD.
!
Sir,
Inclosure in No. 1.
Sir C. MacDonald to Sir J. Jordan.
Tôkiô, January 17, 1908.
I HAVE the honour to acknowledge, with thanks, receipt of your despatches of the 9th and 23rd December, 1907, on the subject of Japanese infringements of British trade-marks in China.
The proofs in this matter, as you say, have fallen far short of expectation. I had been led to suppose that China was flooded with Japanese imitations of British goods, made specially for that market, against which the British merchant could obtain no protection, whereas most of the examples given in the inclosures to your despatches are the ordinary imitations of foreign goods which are to be found here.
As the proposed Convention for the mutual protection of British and Japanese trade-marks in China will presumably only afford to British trade-marks in China the same protection as they are entitled to in Japan, it does not seem to me that the signature of the Convention will cause the disappearance of all such imitations.
The China Association state that these Japanese infringements are to be looked for alone amongst classes of goods the proprietors of which are not organized for mutual protection, such as soap, candles, matches, biscuits, cigarettes, and whisky, and as it is amongst these items, with the exception of matches and cigarettes, but with the addition of scents, hair-oil, tooth-powder, paints, blacking, varnishes, inks, and pencils, that infringements are found in Japan, it does not appear that the Chinese market is specially catered for.
105
2
There is apparently no remedy in this case, as the manufacturers are generally clever enough to protect themselves by the legend "made in Japan," which of course means nothing to a Japanese who cannot read English.
As regards the remedy against the above five classes of imitations in China, it is to be presumed that any Convention made between Great Britain and Japan for the mutual protection of trade-marks would only afford to British trade-marks the protec- tion to which they are entitled in Japan, and consequently only those imitations which can be stopped in Japan could be stopped in China.
It becomes of interest, therefore, to study the various cases of infringements which have been mentioned in Sir J. Jordan's despatches.
In the first place, Mr. Little's statement that "it seems most unlikely that the Japanese would use imitated marks in Shanghae or the coast ports" (Shanghae despatch of the 20th November, 1907), is difficult to understand, seeing that in Yokohama one can in half-an-hour's walk collect from ten to twenty imitated marks.
As regards Price's candles it is not at all certain that an action would be successful in the Courts, for the two labels, although sufficiently alike to deceive a Chinaman, would probably be found by a Japanese judge to differ materially.
The same remark applies to the cigarettes.
Imitations of Chesterman's tape-measure are being sold in Yokohama also, though they appear to be of better quality than those sold in Hankow.
Imitations of scents and soaps are so common in Japan that it is not surprising to find them in China. Worcester sauce has also been so frequently imitated here that one shop had no less than five varieties.
It would appear therefore that, even though a Convention were signed for the mutual protection of trade-marks, most of the imitations which have been quoted by His Majesty's Consuls in China would not necessarily cease, for the following
reasons:-
(1.) That Japanese law and Japanese public opinion do not recognize the making and selling of pseudo-foreign goods as an offence; and
(2) That British merchants and manufacturers are too apathetic, often neglecting to register their marks, or, in cases where they have registered them, hesitating to spend the money necessary for finding and prosecuting an offender. This hesitation is no doubt partially traceable to a lack of confidence in Japanese Courts.
I have, &c.
(Signed)
CLAUDE M. MACDONALD,
3
The statement of Mr. Little, that imitations are not likely to be found in Shanghae, is rather remarkable, because if that were the case one would expect Tôkið and Yokohama to be similarly free from them, whereas, as a matter of fact, one can easily collect several specimens in a half-hour's stroll.
The principal offenders, numerically, are the people who get up their goods in foreign style, and whose name and address appear only in Roman letters, but whose marks are not apparently colourable imitations of well-known foreign ones.
So long
as there is no law which compels these persons to mark their goods "made in Japan in Japanese characters, they apparently are no worse, from a moral point of view, than the makers of ready-made guinea suits who guarantee a Bond Street cut.
Once a mark is actually imitated, however, the position of course changes. It is then possible to prosecute the offender, but it must be remembered that, according to the Japanese Trade-mark Law, no cognizance is taken of an offence until criminal proceedings are instituted by the injured party.
As the foreign merchants in Japan show a certain amount of apathy as regards the institution of criminal proceedings, thus encouraging the trade-mark pirate to continue in his nefarious ways, it is within the bounds of possibility that the British merchant in China will not display any greater energy in seeking the protection which would be accorded to them by the proposed Convention.
This apathy is no doubt attributable to a great extent to lack of confidence in Japanese Courts, the justification of which is to be found in the result of cases like that of Buchanan's "Black and White" whisky.
Decisions favourable to foreigners are, however, sometimes given, and would probably increase in frequency were a Trade-marks Defence League formed, which would fight all similar cases.
I fully agree with you that British merchants in China are justified in objecting to the dishonest imitation of their wrappers and marks, and I hope that if, and when,
a Convention for the protection of their trade-marks is signed, they will take the necessary steps to invoke that protection.
I am sending a copy of this despatch to the Foreign Office,
I have, &c.
(Signed) CLAUDE M. MAŬDONALD.
P.S.-It may be as well to point out that the match-box sent by Mr. Fraser is not an imitation. The two misprints mentioned by him, "Rub lichtly" and "Ohober 3 ro," occur on unmistakably genuine boxes of Bryant and May's matches, boxes which are sold by the largest English firm of this class (Messrs. Lane and Crawford) in Japan, who are prepared to make an affidavit that they are genuine.
C. M. MACD.
!
Sir,
Inclosure in No. 1.
Sir C. MacDonald to Sir J. Jordan.
Tokić, January 17, 1908.
I HAVE the honour to acknowledge, with thanks, receipt of your despatches of the 9th and 23rd December, 1907, on the subject of Japanese infringements of British trade-marks in China.
The proofs in this matter, as you say, have fallen far short of expectation. I had been led to suppose that China was flooded with Japanese imitations of British goods, made specially for that market, against which the British merchant could obtain no protection, whereas most of the examples given in the inclosures to your despatches are the ordinary imitations of foreign goods which are to be found here.
As the proposed Convention for the mutual protection of British and Japanese trade-marks in China will presumably only afford to British trade-marks in China the same protection as they are entitled to in Japan, it does not seem to me that the signature of the Convention will cause the disappearance of all such imitations.
The China Association state that these Japanese infringements are to be looked for alone amongst classes of goods the proprietors of which are not organized for mutual protection, such as soap, candles, matches, biscuits, cigarettes, and whisky, and as it is amongst these items, with the exception of matches and cigarettes, but with the addition of scents, hair-oil, tooth-powder, paints, blacking, varnishes, inks, and pencils, that infringements are found in Japan, it does not appear that the Chinese market is specially catered for.
No comments yet.
Private notes are available after approval.