At the same time it seems to me that in view of the recent opinion of the Law Officers that subjects of British colonies are entitled to the benefits of a convention to which the colonies in question have not adhered-unless there is some definite provision to the contrary-it would be advisable to omit article 3. According to the Law Officers' opinion, subjects of our colonies would be entitled to the benefits of this convention even without article 3, whereas the fact of its inclusion in this agreement might weaken our case if we were to claim the benefits of the new treaty of commerce and navigation for subjects of non-adhering colonies, seeing that there is no article In case it should, however, be decided corresponding to this article 3 in that treaty. to retain the article, the insertion of the word "dominions" before "colonies " should be considered.
Furthermore, as the leased territories of Wei-hai Wei and Kwangtung are now covered by the new treaty, it seems doubtful whether we require draft article 4, an article the utility of which was never very apparent.
To sum up, therefore, I would suggest that the proposed counter-draft should be altered by the addition to article 1 of certain words above-mentioned, and by the omission of articles 3 and 4, and that instructions should then be given to His Majesty's representative in Tokyo to present the said counter-draft to the Japanese Government, while informing him at the same time that His Majesty's Government would prefer to have no convention at all rather than one which only afforded protection to marks registered in the appropriate office of the other contracting party.
Foreign Office, June 7, 1911.
Dear Sir,
Enclosure 1 in No. 1.
London Chamber of Commerce to Mr. Crowe.
Oxford Court, Cannon Street, London, May 25, 1911.
I HAVE, as arranged with you, submitted your summary of the discussion on the proposed Anglo-Japanese Trade-mark Convention between the members of the trade-marks section and yourself, to the chairman of that section, Mr. J. E. Evans- Jackson, who, in returning the same, makes the following comment to which you will doubtless afford due consideration :-
"The only comment I have to make on this is that not only would the Japanese by virtue of his registration in Japan be able to secure registration in China, but he would also be able to exclude the goods of the British firm who might possibly have been using the mark in China for many years past, for the simple reason that the English house would not be able to register at all, in view of the fact that marks are incapable of registration in England in a great many cases.”
Yours, &c.
I now return your original note with one type-written copy.
CHARLES E. MUSGRAVE,
Enclosure 2 in No. 1.
Secretary.
Proposed Trade-marks Convention with Japan: Note by Mr. E. F. Crowe of Discussion with Members of the Patents, Trade-marks, and Designs Section of the London Chamber of Commerce, on Tuesday, May 16, 1911.
THE patents, trade-marks, and designs section of the London Chamber of Commerce are afraid that if the convention is signed in the form at present proposed, Japanese subjects would obtain rights which would be valuable to them in the event Chinese trade-mark regulations being enforced in China. The point they make is at if a Japanese took a mark, which was similar to a British mark, and registered England or in China, the in Japan, the mark being one which was unregistrable panese by virtue of his registration in Japan and by virtue of the convention, would have a right to registration in China prior to that of the British firm who had nvented the mark, and had used it for years in China, but had been unable to egister it in England.
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They say they would only consider the convention in its present form acceptable if it were accompanied by a clear undertaking from the Japanese Government that the conclusion of the convention was not to affect the fact that in the event of trade- mark regulatious being enforced in China, all disputes arising as to the right of registration were to be decided solely on the ground of priority of user in China.
Enclosure 3 in No. 1.
Joint Meeting of the China and Far East Committee and Members of the Trade and Merchandise Marks Committee held on Thursday, May 25, 1911, at 3 P.M.
PRESENT: Mr. Francis Ashworth, in the chair; Mr. E. F. Crowe, His Britannic Majesty's Commercial Attaché for Japan; Mr. W. T. Stubbs, President; Sir F. Forbes Adam, C.I.E.; Mr. Charles Dent; Mr. J. R. Finlayson; Mr. Frank Garnett; Mr. E. L. Hoyle; Mr. F. P. Nathan; and Mr. W. J. Robertson with Mr. J. W. Madders.
Apologies for absence were received from Mr. M. S. Bles, Mr. Alfred Crewdson, Mr. A. K. Davies, Mr. Gustav Eckhard, and Mr. R. J. Kerr.
Mr. Ashworth introduced Mr. Crowe to the committee, who referred to correspondence between the Chamber, the China Association, and the Foreign Office, on the proposed Anglo-Japanese Trade-marks Convention, and in particular to a letter, dated the 13th May, from the Chamber to the department, in which the Chamber's views on Sir F. Lugard's draft convention and the alternative counter-draft convention were stated as follows:-
"As in your view it is inadvisable to put forward Sir F. Lugard's proposal, owing to various difficulties, the Chamber are of opinion that the second paragraph of the counter-draft convention would afford adequate protection to unregistered marks for which claims based on length of user can be established-always provided that the same construction is put upon its language in both British and Japanese consular courts in China, as in this country is placed upon the similar clause in the Imperial Merchandise Marks Act of 1887 (section 3 (2)), which gives an unregistered owner, who can prove his ownership by establishing the fact of sole user, complete protection, Failing conventional protection for unregistered marks, in terms adequately explicit, the Manchester Chamber would prefer not to have any convention."
Referred to letter of the 26th April, from the China Association to the Foreign Office, in which they approved Sir F. Lugard's draft, but stated that they did not agree with the Manchester Chamber that the amended counter-draft would be satisfactory, even with the inclusion of the second paragraph of article 1, as, though the wording of the latter might be interpreted by a British court, so as to afford protection to any marks or combination of marks established by long user, "the terms are not sufficiently explicit to justify a belief that such interpretation would prevail in a Japanese court in China."
Mr. Crowe reported that he had bad an interview with the London Chamber, who had stated that they objected to the conclusion of a convention with Japan for the protection in China of Japanese marks registered in Great Britain and vice versa, because they considered that if China subsequently constituted arrangements for the protection of trade-marks, it would be difficult to object to the Japanese contention that any Japanese who had wrongfully registered in Japan a British mark-of which the British ownership had been acquired by user only-was entitled to protection in China, as against the British owner. Mr. Crowe had pointed out that even now there was nothing to prevent a Japanese from registering a mark in Japan if the mark was only used in China by its British owners and not in Japan-provided, of course, that the mark did not contravene the Japanese law-so that the conclusion of the convention would not give Japanese pirates any rights in Japan which they had not enjoyed before. Consequently he did not himself personally agree with the contention of the London Chamber, but he wished to lay it before the Manchester Chamber to see whether it in any way altered their former opinion. In reply, the committee ( confirmed the opinion, as previously expressed in their letter of the 13th May to the Foreign Office.
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