CO129-353 - Public Offices - 1908 — Page 538

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citizens due protection in China and Corea, their Representatives signed two Conventions for that purpose, one for China and another for Corea. These Conventions were ratified and the ratifications exchanged on the 6th August, 1908, and went into force ten days later, that is, on the 16th of the same month.

In the Convention regarding China, it was agreed upon that industrial and literary properties, as well as commercial names, duly patented and registered by subjects or citizens of one country in the appropriate office of the other shall have in all parts of China the same protection as is given by that other country in its dominions and possessions;

That in case the right of a Japanese subject protected in the United States be infringed in China by an American citizen or that of an American citizen protected in Japan by a Japanese subject, the aggrieved party shall have in the competent territorial or Consular Court of the country giving the protection the same rights and remedies as subjects or citizens of that country;

That subjects of Corea and citizens of possessions belonging to the United States shall have in China the same treatment as subjects of Japan and citizens of the United States respectively;

That this Convention shall be enforced so far as applicable in any territory in which either country may exercise extra-territorial jurisdiction;

That all rights growing out of the present Convention shall be recognized in the insular and other possessions and leased territories of both countries, and all legal remedies provided for the protection of such rights shall be duly enforced by the competent Courts;

That any person who possesses at the time of the enforcement of this Convention merchandise bearing an imitation of a trade-mark owned by another person and entitled to protection under this Convention shall remove or cancel such false trade-mark or withdraw such merchandise from the market in China within six months from the date of the enforcement of this Convention; and

That unauthorized reproductions of works of art or literature, as well as photographs, belonging to subjects or citizens of one country by those of the other, published prior to the operation of this Convention, and after the 10th May, 1906, and entitled to protection in virtue of this Convention, shall be withdrawn from sale or circulation in China within one year from the date of the enforcement of this Convention.

The above is the gist of the Convention regarding China. In pursuance of this Convention, an Imperial Ordinance was issued extending the effect of industrial property and copyright enjoyed in Japan by Japanese and Corean subjects, and also the application of the rules of patent, design, trade-mark, and copyright laws relating to punishments to subjects of the two countries residing in Kwanto Province and in foreign countries where Japan has extra-territorial jurisdiction, and decreeing that the above provisions shall be applicable to industrial property and copyrights enjoyed in Japan by subjects or citizens of foreign countries, provided that such foreign countries give similar protection to Japanese and Corean subjects in countries where they exercise extra-territorial jurisdiction, and provided further that they do not exercise in Corea extra-territorial jurisdiction regarding the protection of industrial property and copyrights.

It cannot be said, of course, that this Convention perfectly protects in China our industrial and literary properties, as it can do nothing against the infringement by subjects or citizens of foreign countries which are not parties to this Convention. Moreover, in order to secure in China the protection of the United States, we must first have our industrial or literary property patented or registered in the United States itself. But nothing more can be done, as Powers have extra-territorial jurisdiction in China, and China herself has not yet her law on the subject. This Convention, however, shows a certain advance on similar Conventions in force among Powers in countries where they enjoy extra-territoriality. Such Conventions generally relate to trade-marks only, but the one we have concluded with the United States covers also inventions, designs, and copyrights.

It is to be noted that this is not an independent Convention, but has close connection with the Convention regarding Corea. According to the Imperial Ordinance just mentioned, any country desiring to secure in China the Japanese protection for the industrial and literary properties of its subjects or citizens has not only to give in that country similar protection to Japanese and also Corean subjects, but has to waive extra-territorial jurisdiction in Corea in that connection. For this reason, the two Conventions were enforced on the same day.

It is also to be noted that a period of six months in the case of merchandise bearing illegal trade-marks, and a period of one year in the case of unauthorized reproductions of works of art or literature, are allowed before such merchandise and reproductions are to be withdrawn from the market in China. These periods of grace are not meant to give any protection to the owners of illegal goods and unauthorized reproductions, but are given solely for the object of not disturbing the market.

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So much about China. Regarding Corea, Japan promised to cause to be enforced in that country Laws and Regulations relating to inventions, designs, trade-marks, and copyrights similar to those existing in Japan, and to make such Laws and Regulations applicable to American citizens equally as to Japanese and Coreans. On the other hand, the United States engaged that, in case of the infringement by American citizens of inventions, designs, trade-marks, or copyrights protected in Corea, she shall waive her extra-territorial jurisdiction in these particulars, and such citizens shall be under the exclusive jurisdiction of the Japanese Courts in Corea. It is also agreed that industrial property and copyrights patented or registered in Japan by American citizens prior to the enforcement in Corea of the Laws and Regulations mentioned above shall without further procedure be entitled to the same protection in that country as is given to Japanese and Corean subjects; that industrial property and copyrights patented or registered in America by Japanese, Corean, or American citizens prior to the enforcement of the Convention shall be patented or registered in Corea free of charges, provided that such patent or registration is effected within one year after the Convention comes into force; and that the Japanese Government shall extend to American citizens in Corea the same protection regarding commercial names as they enjoy in Japan.

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In order to carry this Convention into effect, the Japanese Government issued five Imperial Ordinances, decreeing that Japanese Patent, Design, Trade-mark, and Copyright Laws and Mercantile Law and Law of Procedure relating to non-contentious matters shall apply in Corea to patents, designs, trade-marks, copyrights, and commercial names respectively. A Patent Office was organized in the Residency-General, Corea, to manage matters relating to industrial and literary properties. On the part of Corea, an order was issued decreeing the enforcement of the above-mentioned Japanese Laws in that country. In applying these Laws, some necessary changes have been made in them by the Imperial Ordinances referred to above, such as "Empire" in the Japanese Laws to "Corea," "the Court" to "Supreme Court, Residency-General, or Residency"; Patent Office to "Patent Office, Residency-General"; Minister of State for the Department of Agriculture and Commerce, and also Minister of State for the Department of Home Affairs" to "Resident-General," &c. It is also provided in these Ordinances that owners of inventions or designs entitled to protection in Corea cannot set up their rights against persons, or their successors, who are using in that country at the time of the enforcement of these Ordinances the same or similar inventions or designs; that any design identical with or similar to the Imperial Crest of Japan or Corea, and any trade-mark containing devices identical with or similar to the Imperial Crest, national flag, military or naval ensign, or decorations of Japan or Corea, or the national flag of any other country, shall not be registered; that Article 16 of the Trade-mark Law shall be applied to merchandise bearing marks similar to trade-marks entitled to protection in Corea only after six months from the enforcement of the Law; and that unauthorized reproductions of works of art or literature entitled to protection in Corea shall be allowed to be sold, circulated, or performed for one year from the enforcement of the Ordinance relating to copyrights, upon complying with formalities to be prescribed by the Residency-General. Another important provision is that "Empire" in Article 6 of the Patent Law is to be understood to include both Japan and Corea. This is very convenient to applicants at the Patent Office, Residency-General, as Japanese and also Americans who have agents in Japan need not appoint agents in Corea. Moreover, a branch office of the Patent Office, Residency-General, has been established in the Patent Office, Tôkiô, so that applications need not be sent to Corea, but may be filed in Tôkiô.

These Imperial Ordinances are applicable also to subjects or citizens of foreign countries which give similar protection to Japanese and Corean subjects, and which do not exercise in Corea extra-territorial jurisdiction in connection with the protection of industrial and literary properties.

The above is a rough explanation of the two Conventions. By these Conventions, we have engaged to give protection in China and Corea to certain foreigners, but at the same time, our interests have been materially promoted there. Of course, such Conventions are very inconvenient to those of evil intention, but by these Conventions, the protection of legitimate interests of Japanese subjects has been secured in these countries.