recognize the making and selling of pseudo-foreign goods as an offence, it is impossible to blame them for their apathy.
My opinion, therefore, is that a Convention in the existing circumstances and on the lines proposed will have no good results in China, and is therefore inadvisable. There is no doubt that an arrangement of some kind between Great Britain and Japan for the mutual protection of trade-marks in this country is desirable, if only to avoid the endless disputes between British and Japanese merchants and constant friction that must take place when China finally makes up her mind to issue satisfactory regulations on the subject and establishes a Trade-marks Bureau of her own; but to a Convention such as is proposed, which involves the sacrifice of valuable British property and the abandonment of our legitimate rights in favour of Japanese who give nothing in return, even the present unsatisfactory condition of affairs is preferable.
I have, &c.
(Signed) PELHAM L. WARREN.
[This Document is the Property of His Britannic Majesty's Government.]
CHINA TRADE.
CONFIDENTIAL.
(12381)
No. 1.
Foreign Office to Board of Trade.
5310. 17031
18 MAY 08
[April 21.]
SECTION 1.
Sir,
Foreign Office, April 21, 1908. WITH reference to previous correspondence on the subject, I am directed by Secretary Sir E. Grey to transmit to you herewith, to be laid before the Board of Trade, copies of correspondence which has passed between this Office and Messrs. Ashton, Hoare, and Co. relative to the protection of British trade-marks in China and Japan.*
With the concurrence of the Board, it is proposed to answer Messrs. Ashton, Hoare's letter of the 9th instant on the following lines:-
The case of Sir E. Armytage's "Crocodile" mark, to which they refer, has been fully reported to His Majesty's Government, and, on the instructions of Sir E. Grey, His Majesty's Chargé d'Affaires made a complete statement of the facts to Count Hayashi, with the suggestion that the Japanese Government should, if necessary, so amend their trade-mark law as to enable any mark to be struck off the register by a competent Tribunal on its being proved to belong to another, and that some provision should be inserted to enable registration to be cancelled unless made by the true owners of the mark.
Count Hayashi replied that as the "Crocodile" mark had been in the undisputed use of the Japanese, by whom it had been registered, for three years since the date of registry, the 20th February, 1903-by Japanese law the mark had become the legal property of the registering party. The Japanese Government could not therefore render the registration invalid, as Messrs. Armytage had taken no steps either to register the mark in Japan themselves or to challenge the right of the other party to the mark within the three years allowed for that purpose by the Trade-marks Law of 1899.
Sir E. Grey would propose to say further that no doubt Count Hayashi's interpretation of the Japanese law, as it at present stands, is correct, and that in the circumstances it would be useless to press the matter further, the fault being primarily that of Messrs. Armytage, who failed to take the precaution of registering their mark in Japan.
Sir E. Grey fully appreciates that Japanese trade-mark law is by no means satisfactory, and the matter of its amendment will be again urged upon the Japanese Government.
Sir E. Grey would propose to conclude by saying that the draft Convention with Japan for the mutual protection of British and Japanese marks in China is still under discussion between the British and Japanese Governments, but he would at the same time point out that in any case such a Convention can only provide for protection of marks from infringement by Japanese subjects in accordance with Japanese law, and that, as stated in the letter to Messrs. Ashton of the 17th December, 1907, the first step to obtain such protection is to register in Japan without delay.
Should the Board concur in the reply on the above lines, Sir E. Grey would suggest sending instructions to Sir C. MacDonald to again bring to the notice of the Japanese Government the suggestions contained in the Board of Trade letter of the 20th March, 1907, the substance of which was communicated to Count Hayashi in Mr. Lowther's note of the 27th May, 1907 (see inclosure in the letter from this Office of the 12th September, 1907).
I am, &c.
(Signed) F. A. CAMPBELL.
P.S.-A copy of a further letter from Messrs. Ashton, Hoare of the 13th April is also inclosed; the despatch therein referred to is no doubt Sir C. MacDonald's despatch No. 10 of the 18th January last. Sir E. Grey proposes to take no action in this letter beyond including it in the general reference in his reply to Messrs. Ashton, Hoare. The return of the inclosures in their letter of the 13th instant is requested.
F. A. C.
* Messrs. Ashton, Hoare (Limited), December 7; to ditto, December 17, 1907: Messrs. Ashton, Hoare (Limited), April 9, 1908.
† Messrs. Ashton, Hoare (Limited), April 13, 1908 (not printed).
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recognize the making and selling of pseudo-foreign goods as an offence, it is impossible to blame them for their apathy.
My opinion, therefore, is that a Convention in the existing circumstances and on the lines proposed will have no good results in China, and is therefore inadvisable. There is no doubt that an arrangement of some kind between Great Britain and Japan for the mutual protection of trade-marks in this country is desirable, if only to avoid the endless disputes between British and Japanese merchants and constant friction that must take place when China finally makes up her mind to issue satisfactory regulations on the subject and establishes a Trade-marks Bureau of her own; but to a Convention such as is proposed, which involves the sacrifice of valuable British property and the abandonment of our legitimate rights in favour of Japanese who give nothing in return, even the present unsatisfactory condition of affairs is preferable.
I have, &c.
(Signed) PELHAM L. WARREN.
[This Document is the Property of His Britannic Majesty's Government.]
CHINA TRADE.
CONFIDENTIAL.
(12381]
No. 1.
Foreign Office to Board of Trade.
5310. 17031
18 MAY 08
[April 21.]
SECTION 1.
Sir,
Foreign Office, April 21, 1908. WITH reference to previous correspondence on the subject, I am directed by Secretary Sir E. Grey to transmit to you herewith, to be laid before the Board of Trade, copies of correspondence which has passed between this Office and Messrs. Ashton, Hoare, and Co. relative to the protection of British trade-marks in China and Japan.*
With the concurrence of the Board, it is proposed to answer Messrs. Ashton, Hoare's letter of the 9th instant on the following lines:-
The case of Sir E. Armytage's "Crocodile" mark, to which they refer, has been fully reported to His Majesty's Government, and, on the instructions of Sir E. Grey, His Majesty's Chargé d'Affaires made a complete statement of the facts to Count Hayashi, with the suggestion that the Japanese Government should, if necessary, so amend their trade-mark law as to enable any mark to be struck off the register by a competent Tribunal on its being proved to belong to another, and that some provision should be inserted to enable registration to be cancelled unless made by the true owners of the mark.
Count Hayashi replied that as the "Crocodile" mark had been in the undisputed use of the Japanese, by whom it had been registered, for three years since the date of registry, the 20th February, 1903-by Japanese law the mark had become the legal property of the registering party. The Japanese Government could not therefore render the registration invalid, as Messrs. Armytage had taken no steps either to register the mark in Japan themselves or to challenge the right of the other party to the mark within the three years allowed for that purpose by the Trade-marks Law of 1899.
Sir E. Grey would propose to say further that no doubt Count Hayashi's interpre- tation of the Japanese law, as it at present stands, is correct, and that in the circumstances it would be useless to press the matter further, the fault being primarily that of Messrs. Armytage, who failed to take the precaution of registering their mark in Japan.
Sir E. Grey fully appreciates that Japanese trade-mark law is by no means satisfactory, and the matter of its amendment will be again urged upon the Japanese. Government.
Sir E. Grey would propose to conclude by saying that the draft Convention with Japan for the mutual protection of British and Japanese marks in China is still under discussion between the British and Japanese Governments, but he would at the same time point out that in any case such a Convention can only provide for protection of marks from infringement by Japanese subjects in accordance with Japanese law, and that, as stated in the letter to Messrs. Ashton of the 17th December, 1907, the first step to obtain such protection is to register in Japan without delay.
Should the Board concur in the reply on the above lines, Sir E. Grey would suggest sending instructions to Sir C. MacDonald to again bring to the notice of the Japanese Government the suggestions contained in the Board of Trade letter of the 20th March, 1907, the substance of which was communicated to Count Hayashi in Mr. Lowther's. note of the 27th May, 1907 (see inclosure in the letter from this Office of the 12th September, 1907).
I am, &c.
(Signed) F. A. CAMPBELL.
P.S.-A copy of a further letter from Messrs. Ashton, Hoare of the 13th April is also inclosed; the despatch therein referred to is no doubt Sir C. MacDonald's despatch No. 10 of the 18th January last. Sir E. Grey proposes to take no action in this letter beyond including it in the general reference in his reply to Messrs. Ashton, Hoare. The return of the inclosures in their letter of the 13th instant is requested.
F. A. C.
* Messrs. Ashton, Hoare (Limited), December 7; to ditto, December 17, 1907: Messrs. Ashton, Hoare (Limited), April 9, 1908.
† Messrs. Ashton, Hoare (Limited), April 13, 1908 (not printed).
[2918 I- -1]
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