November 11, 1907.)
Office has announced its willingness to accept particulars for the information of the Bureau of all trade-marks which are still in use, and were in existence and use prior to the 1st July, 1899, when the Trade- mark Law came into force. This is with a view to prevent the fraudulent registration of trade-marks, it being illegal, as the Bureau points out, to register a trade-mark used by another prior to the coming into operation of the law and which still continue in use. This suggests, and will inevitably create the expectation, that whenever the Department is in possession of the knowledge of such prior usage, it will refuse registration of imitations of the trade-marks so known to have been in use. Hitherto, we believe, it has been registering all that were submitted, taking no notice of anything beyond previous registration. If it means to do now what its communication to the Yokohama Board of Trade implies, it is a very handsome con- cession indeed to the moral rights of foreign trade-mark users in Japan. The late Mr. SILVER HALL, in his Manual of the Japanese Patent, Trade Marks and Designs Law," published in 1901, quotes the clause referred to by the Patent Bureau, which includes among the trade-marks that cannot be registered "those which are identical with, or similar to, trade-marks used by other persons before the present Law came into operation." Mr. Hall then comments as follows:-
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in
CHINA OVERLAND TRADE REPORT.
SEDITIOUS PUBLICATIONS.
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305
There is
THE OPIUM QUESTION.
always very honest comments. this, however, to be said, that its (Daily Press, November 8th). trial does not seem to have been as formal The new Sedition Ordinance at Hongkong and fair as it ought to have been. The was based on an Order in Council that had reports of the case so far have been too received the Royal Assout as far back as meagre for us to write with certainty of the February 11th, and our readers may re- conduct of the trial, but those we have read member that we learned nothing of the make the evidence seem inadequate. The Order in Council until it was reported as posted at the British Supreme Court at
evidence of Bishop TURNER reads as if it Shanghai on Sept. 5th.
were quite immaterial, and the chief Japa- We instituted nese official witness spoke of his "impres- immediate enquiries as to its effect at sioux rather than of his knowledge. It Hongkong, and were informed that it did would almost seem that the Order in not affect us in any way. That there was Council was worded with a view to obviating some misunderstanding at that time was afterwards made apparent by the intro-checking of obnoxious publications on the the difficulty of proof, and to allow of the duction of the new Ordinance relating to strength of appearances, calculations, and seditious publications, an important clause apprcheusions. That is, it is not necessary of which was subsequently amended in to prove that an article did cause a brach precisely the same way and to the same extent that we felt it our duty to recommend persuade the Judge that it might have doge of the peac or incite a rising, but only to aud urge upon the Government. We do so, In this case, it is obvious that the not anticipate that there will be any ex-Judge has a tremendous responsibility, and | planation as to way the Order in Council we imply no disrespect to the British official should have been lost sight of for so many who tried the case in Seoul when we say mouths, and merely point it out now as a that it would have been more just to take singular circumstance. There is a further the case to Shanghai, or to have at least the curious detail, however. As our readers Supreme Judge to try it. know, the first prosecution under the new
In saying this, we have the support of the Order in Council Order was at Seoul, the defendant being itself. Mr. BETHELL of the Korea Daily News and under this Article (relating to sedition) It distinctly says that "jurisdiction
its Korean elition. It has been noted that shall not be exercised except by the the Order was first made public at Shanghai, Supreme Court." The clause 10 the where the British Supreme Court for China Principal Order in Council, now substituted Apparently this would prevent A from and Korea is situated, two days after the by the above, was even more emphatic, being registering a trade-mark similar to a foreign date of the first offending article in the trade-mark previously known and used
to the effect that "an offence against this Japan as distinguishing goods imported by Bof, that is to say, appeared in the issue Supreme Court."
Seoul Paper. The first article complained Article shall not be tried except by the but in several test cases, one of which was carried to the Supreme Court, in which the
dated Sept. 3rd, and it was suggested at the plaintiff B applied for the cancellation of a
time by the particularly well-informed trade-mark registered by the defendant A on Japanese editor of the Seoul Press that the the ground that he, B, had used it for many years
Order in Council to distinguish goods of the same class which he supposed requirements in Korea. In that was inspired by the had been in the habit of importing, and which case, and we do not for a moment doubt
(Daily Press, November 9th.) were extensively known and used in Japan, it has
We see in correspondence with the local been decided that no such protection against ducted in a manner demanding attention, find space for later, that the Chamber that the Korra Daily News had been con-
Chamber of Commerce, which we hope to there was less apparent need to hasten to
addressed the Colonial Secretary on the apply the new Order in Council to Hong-subject of the Nanking Viceroy's projected koug. It does appear that at Hongkong, opium monopoly. All shops will have to as at Shanghai, the native press has made buy their raw opium from the Viceroy's itself obnoxious to the Chinese authorities, tominee. but it is by
If the scheme succeeds, and is as no means obvious that profitable as it promises, other Viceroys there has been sufficient mischief will be sure to copy the example, and the to warrant active intervention, If Chamber lodges a protest against such there was, it must be assumed that the interference with an established foreign mere passing of the Ordinance has caused trade. The Goveruor is asked to support the offenders suddenly to amend their ways, the protest, on the ground that the project so far there has been no prosecution is illegal and contrary to treaty, Articles V locally. With the incident reported during and X of the British Treaty of Nanking the American boycott and the visit of Miss 1842 being quoted. The British Merchants ALICE ROOSEVELT, we establishing any connection. That was a
cannot think of iu Shanghai combined and refused to supply the monopolist, who thereupon began to matter, not of sedition, but of public decency, buy at Hongkong, where a boycott was less and the Governor has all along had power easy to arrange.
The Chamber points out without the new Ordinance to deal with such that while the new Bureau poses as an cases. The charge against the Korean Daily anti-opium movement, it is really a monopoly News was that of publishing matter cal
with revenue as its sole object. The Hong. culated to cause a breach of the public peace kong merchaute interested had written not and to incite the people to rise against the only to the Chamber of Commerce, pointing Government. It is a serious charge, but these things out, but also to the British ever since the Japanese occupation of Korea, Consul at Shanghai, and to the Chairman that journal has ignored the views of the of the China Association at Shanghai, Powers and the exigencies of the situation, The Chamber of Commerce telegraphed and persistently kicked against the pricks to the British Minister at Peking add- in a manner bound ultimately to invite some ing their protest to those already for- such intervention as has now taken place. warded. The Hongkong Branch of the At last it weat too far; the new Order in
China Association also agreed to co-coprate Council suddenly though belatedly was
in the protection of the interests concerned. produced; and our Seoul contemporary was The protest was forwarded by the Governor found guilty by the British Consular Court to the Secretary of State for the Colonies, at Seoul and ordered to deposit three but at the same time His Excellency pointed thousand ven as security against any out, to the Hongkong Chamber, that the repetition of the offence, in which case the persons" directly affected, and upon whom money would be forfeited and the defendant should devolve the task of representing to deported. So far we have little sympathy His Britannic Majesty's Minister at Peking with our contemporary's trou i It the alleged breach of treaty, are the invited them by its foolish
merchants of Nanking.', His Excellency
re-
infringement of a trade-mark of this class can be granted, nor can it be recognised in any way, unless it has been actually registered in the Japanese Patent Bureau, and in fact the con- tinued use of such a mark by B renders him liable to prosecution for infringing A's gistered trade-mark, As there are many such trade-marks which were known and used in Japsu by foreigners before they were entitled to claim registration, these decisions are of con- siderable importance; and emphasise the neces sity of registering a foreign trade-mark before it becomes known and valuable in Japan."
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That was the opinion of a gentleman whom the Japan Chronicle described as one of the best-known patent agents in Japan," and read in conjunction with the communication from the Patent Bureau, it does not necessarily seem to suggest that the judges will be obliged to change their attitude. It merely emphasises the im- portance of the real owner of a trade-mark hastening to register it before anyone else does so.
The mischief is that the Japanese merchants seem to have paid more attention to the law thau the foreigners, and to have seen its opportunities and possibilities, and made use of them, with the result that many valuable trade-marks have already been registered by persons who had no right or title to them, and, as Mr. HALL says, if the original owners continue to use them, they will be liable to prosecution. All that the Patent Bureau really promises, then, if it be a promise, is to refrain from granting any more registrations under similar cir- cumstances, provided always that they are supplied with the necessary data by the rightful owners of unregistered trade-marks. It would really seem that the owners of such pirated marks in the past have largely their own neglect to blame for what has been done already,
as
3.
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