CO129-385 - Public Offices - 1911 — Page 42

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[This Document is the Property of His Britannic Majesty's Government.]

JAPAN.

CONFIDENTIAL.

C

[22440]

со

33739

RECE

REGE 19 OCT 11

[June 7.]

SECTION 3.

Memorandum by Mr. E. F. Crowe respecting proposed Anglo-Japanese Convention for Mutual Protection of Trade-marks in China.

WITH reference to the instructions given me in the minutes on Paper 15662 of the 27th April, I seized the opportunity of my visit to various chambers of commerce in this country to discuss with them the proposed Anglo-Japanese convention for the mutual protection of trade-marks in China. In London and in Manchester I was able to go into the matter with the special trade-marks committees, while at other places it was individual firms who expressed their views. The letters which have been addressed to the Foreign Office by the China Association and many of the chambers of commerce make it clear that there is a consensus of opinion that British firms dealing with China would be better off without any convention at all than with one which only affords protection to registered marks. They do not, however, all of them show the reasoning which led up to this decision, and it was only after considerable discussion that I was able to elicit from the merchants why they held this view. The two firms who expressed themselves most clearly and whose opinions are of particular interest, seeing that their marks are actually registered in Japan, were Messrs. Cross- field and Sous, soap manufacturers, of Liverpool, and Messrs. John Shaw and Sons, woollen manufacturers, of Halifax.

Their chief point is that at present when a Japanese imitates a mark and sells the goods bearing it to Chinese retailers, the British trade-mark owners are able to obtain satisfaction and to get a proclamation issued restraining the Chinese from using the mark. They admit that they are not at present legally enabled to take proceedings against the Japanese pirate in China, but they consider it more important to be able to proceed against the Chinese retailer than against the original Japanese pirate. I am not aware that there is any particular law which compels the Chinese authorities to take action in these cases, but, at any rate, a precedent has been established which can be invoked when necessary. The British merchants are afraid that if a convention is concluded which only recognises registered marks, the Chinese authorities may be persuaded by the Japanese Foreign Office to alter their procedure on the ground that the existing precedents do not apply any longer.

There appears to be no question that the number of British marks in use in China which are not only not registered, but which are incapable of registration, is very large. I am informed that it was for this same reason that it was found to be impossible to have a Trade-marks Act in India, and that recourse for protection is there confined to the Indian Merchandise Marks Act. It would seem that in China also it will be absolutely essential to afford some sort of protection to well-established but unregistered marks. The fact that we have not got any such arrangement with other important countries was carefully explained by me, but the British merchants and manufacturers appear to have a particular dread of the Japanese, who, from their proximity and their ability to get into closer touch with the Chinese retailer, are very dangerous rivals; and consequently they will not look at what has been done in past cases with other countries as any guide for the future.

Although all are agreed that it is better to have no convention than one without protection for unregistered marks, there are two opposing schools, one of which, represented by the Manchester and Liverpool Chambers, would be satisfied with the second paragraph of article 1 of the counter-draft (the Herschell clause), while the other thinks that salvation is only to be found in the draft convention based on Sir F. Lugard's proposal. The arguments on both sides will be found in the minutes of th meetings with the London and Manchester Chambers of Commerce which I ha attached hereto. I would venture to suggest that the best solution of this difficu problem would be to add the following words at the end of the Herschell claus "And the high contracting parties agree that all disputes arising as to the right to use in China any such figures, words, or marks, or arrangements or combination thereof, shall be decided solely on the grounds of priority of user in China."

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