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misuse as they would receive if they were hong-marks belonging to the subjects of such other Contracting Party.
ARTICLE 3.
In case of infringement or misuse in China or Corea by a subject of one Contracting Party of any hong-mark entitled to protection as provided in the preceding Article, or of any trade name entitled to protection under Articles 8, 9, and 10 of the International Convention for the Protection of Industrial Property of the 20th March, 1883, as amended by the Additional Act of the 12th December, 1900, the aggrieved party shall have, in the competent Courts of such Contracting Party, the same rights and remedies as the subjects of such Contracting Party, without being compelled to submit to any other or more onerous conditions than such subjects.
The provisions of this Convention shall be deemed to extend to the application to goods of any figures, words, or marks, or arrangement or combination thereof, whether including a trade-mark or not, which are reasonably calculated to lead persons to believe that the goods are the manufacture or merchandize of some person other than the person whose merchandize or manufacture they really are.
ARTICLE 4.
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 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 the 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 in the English and Japanese languages, this corresponding to the
Declaration which it is suggested should be appended to the Convention on the part of Japan.
The Japanese Government engage that, pending further legislation, the broadest possible construction will be given to the provisions of the Japanese Trade-mark Law for the protection of the rightful owners of trade-marks by the rejection and cancellation of wrongful registrations.
Registration will be refused to all those marks which tend in any way to deceive the public, or which contain any misrepresentation as to the place of origin, quality, &c.
In the case of marks already registered the same rule will be applied, and if any trade-mark is found, upon examination, to be designed to deceive or work fraud upon the public it will be cancelled, no matter how long it may have been registered.
Any applicant for registration who finds that his mark has been imitated or wrongfully registered by another person may present evidence to prove that he is the original and rightful owner of such mark, and may seek judgment for the cancellation of such wrongful registration, and for such other relief as the circumstances may justify.
3
the provision set out in paragraph 2 of the proviso to Article 3 and of Article 4 of the later Order.
Now, if the contemplated Treaty falls under the term "arrangement" mentioned in this paragraph and Article, then England will, by the proposed Treaty, have given to the subjects of Japan in her Consular Courts in China and Corea the same protection under the Merchandize Marks Act as she gives to her own subjects, except that, of course, the provisions as regards seizure on importation could not apply to China and Corea as far as England is concerned, as the Customs are not under her complete control.
Unless, therefore, on the signing of the Treaty, Japan can give in her Consular Courts in China and Corea to British subjects protection to the same extent as England will give to Japanese subjects in her Consular Courts, Japan must either undertake to forthwith pass appropriate legislation providing, in addition to any further protection that may be necessary in Japan itself, the same protection for British subjects in her Consular Courts, or England should make it clear that the mere entering into this Treaty is not an arrangement falling within paragraph 2 of the proviso to Article 3 or Article 4 of the Order in Council of 1907, or revoke the Order so far as to bring into operation as the sole test the provision under sub-paragraph (b), which is found in the proviso to Article 3 and in Article 4.
It will probably be desirable that the Foreign Office should consult their Legal Advisers on this point.
R. E. C.
July 21, 1908.
(Initialled)
Inclosure 2 in No. 1.
Note by the Solicitor to the Board of Trade.
Proposed Treaty with Japan as to Trade-marks, &c.
THERE is all the more necessity for ascertaining exactly what protection the existing law of Japan will give to trade-marks, trading names, and hong-marks in China and Corea and in Japan itself if this Treaty goes through, because England has, by the Orders in Council of 1904 and 1907, applied the provisions of the Merchandize Marks Act to China and Corea, and has protected foreigners in her Consular Courts, subject to
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misuse as they would receive if they were hong-marks belonging to the subjects of such other Contracting Party.
ARTICLE 3.
In case of infringement or misuse in China or Corea by a subject of one Contracting Party of any hong-mark entitled to protection as provided in the preceding Article, or of any trade name entitled to protection under Articles 8, 9, and 10 of the International Convention for the Protection of Industrial Property of the 20th March, 1883, as amended by the Additional Act of the 12th December, 1900, the aggrieved party shall have, in the competent Courts of such Contracting Party, the same rights and remedies as the subjects of such Contracting Party, without being compelled to submit to any other or more onerous conditions than such subjects.
The provisions of this Convention shall be deemed to extend to the application to goods of any figures, words, or marks, or arrangement or combination thereof, whether including a trade-mark or not, which are reasonably calculated to lead persons to believe that the goods are the manufacture or merchandize of some person other than the person whose merchandize or manufacture they really are.
ARTICLE 4.
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 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 the 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 in the English and Japanese languages, this corresponding to the
Declaration which it is suggested should be appended to the Convention on the part of Japan.
The Japanese Government engage that, pending further legislation, the broadest possible construction will be given to the provisions of the Japanese Trade-mark Law for the protection of the rightful owners of trade-marks by the rejection and cancellation of wrongful registrations.
Registration will be refused to all those marks which tend in any way to deceive the public, or which contain any misrepresentation as to the place of origin, quality, &c.
In the case of marks already registered the same rule will be applied, and if any trade-mark is found, upon examination, to be designed to deceive or work fraud upon the public it will be cancelled, no matter how long it may have been registered.
Any applicant for registration who finds that his mark has been imitated or wrongfully registered by another person may present evidence to prove that he is the original and rightful owner of such mark, and may seek judgment for the cancellation of such wrongful registration, and for such other relief as the circumstances may justify.
3
the provision set out in paragraph 2 of the proviso to Article 3 and of Article 4 of the later Order.
Now, if the contemplated Treaty falls under the term "arrangement" mentioned in this paragraph and Article, then England will, by the proposed Treaty, have given to the subjects of Japan in her Consular Courts in China and Corea the same protection under the Merchandize Marks Act as she gives to her own subjects, except that, of course, the provisions as regards seizure on importation could not apply to China and Corea as far as England is concerned, as the Customs are not under her complete control.
Unless, therefore, on the signing of the Treaty, Japan can give in her Consular Courts in China and Corea to British subjects protection to the same extent as England will give to Japanese subjects in her Consular Courts, Japan must either undertake to forthwith pass appropriate legislation providing, in addition to any further protection that may be necessary in Japan itself, the same protection for British subjects in her Consular Courts, or England should make it clear that the mere entering into this Treaty is not an arrangement falling within paragraph 2 of the proviso to Article 3 or Article 4 of the Order in Council of 1907, or revoke the Order so far as to bring into operation as the sole test the provision under sub-paragraph (b), which is found in the proviso to Article 3 and in Article 4.
It will probably be desirable that the Foreign Office should consult their Legal Advisers on this point.
R. E. C.
July 21, 1908.
(Initialled)
Inclosure 2 in No. 1.
Note by the Solicitor to the Board of Trade.
Proposed Treaty with Japan as to Trade-marks, &c.
*
THERE is all the more necessity for ascertaining exactly what protection the existing law of Japan will give to trade-marks, trading names, and hong-marks in China and Corea and in Japan itself if this Treaty goes through, because England has, by the Orders in Council of 1904 and 1907, applied the provisions of the Merchandize Marks Act to China and Corea, and has protected foreigners in her Consular Courts, subject to
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