Mr. Dun to Mr. Olney.
Sir: I have the honor to call your attention to Articles XVII and XXI, and the protocol to Article XVII, of the treaty of trade and commerce lately concluded—April 4, 1896—between Germany and Japan, relating to trade-marks and patents. Translations made at this legation of the articles referred to above are inclosed herewith.
You will observe that Article XVII provides that subjects of either contracting country shall have in the territory of the other the same rights as the citizens of that territory in regard to protection for inventions, patterns, models, trade-marks, etc., provided they observe the conditions imposed by the law of the land. The protocol to Article XVII provides that, in either of the contracting countries, protection with regard to inventions, patterns, models, trade-marks, etc., must be accorded to subjects of the other country as soon as the conditions imposed by the law of the land have been fulfilled. Article XXI fixes the date when the treaty shall take effect, how long it shall hold good, how it may be terminated, and provides that Article XVII of the present treaty shall take “effect from the date of the exchange of ratifications, and, unless otherwise agreed upon by the contracting parties, shall remain in effect until the other articles of the treaty lose their force.”
The protection accorded to German subjects under the articles cited above are reciprocal.
It uppears to me that under the most-favored-nation clause of our treaty with Japan American citizens are, subject to the same terms and conditions, entitled to the same privileges and protection in regard to trade-marks, patents, etc., that the new German-Japanese treaty secures in Japan to German subjects.
The new treaty is silent in regard to the question of jurisdiction in the event of infringement of Japanese patent or trade-mark laws by German subjects, but, in the absence of express stipulations to the contrary, it must be inferred that the German consular courts in Japan will continue to exercise jurisdiction over German subjects in this regard, as well as in all other cases, both civil and criminal, until those courts are abolished under the provisions of the new treaty, which will take effect not earlier than July 17, 1899.
It is true that any protection or privilege granted to a German subject under the patent or trade-mark laws of Japan could be canceled in the event of infringement of those laws by the individual, but [Page 428] further than this a German subject resident in Japan can be justiceable only by the German consular courts for any infringement of Japanese law.
The question of jurisdiction is, however, in my opinion, of very little practical importance. It is not at all likely that any American or European will ever attempt to infringe the patent or trade-mark laws of Japan. They will come here seeking protection for their own patents and trade-marks, and not to infringe upon the rights of Japan in this regard. Within the very short time that will elapse before the new treaties come into operation Japan will hardly offer sufficient inducement for foreigners who might otherwise be so disposed to infringe her patent and trade-mark laws.
Owing to the disturbed state of the Japanese cabinet since the resignation of Marquis Ito, I have deemed it best to refrain, until after the reorganization of that body, from speaking to the minister for foreign affairs in regard to Japan’s disposition to extend to American citizens, under the same terms and conditions, the same rights and privileges in regard to patents, trade-marks, etc., that are secured to German subjects under the new German-Japanese treaty. I have no reason to believe, however, that Japan will have any unwillingness to extend these rights and privileges to American citizens, for, it appears to me, we are clearly entitled to them under the most-favored-nation clause of our existing treaty with Japan.
As this question is one of very considerable importance to American citizens, I shall be glad if you will instruct me on the following points:
In the event of Japan’s willingness to extend to American citizens the rights and privileges referred to herein on the same terms and conditions as they have been granted to German subjects, can reciprocal rights and privileges be granted under the laws of the United States to Japanese?
I assume that, in the event of Japan’s notifying my Government in writing that she is prepared to extend to Americans the rights and privileges granted to Germans by treaty, she will expect in return a written assurance of some kind of reciprocal treatment of Japanese by the United States. In such event, would an exchange of notes between the two Governments be sufficient, or would a more formal agreement, in the form of a convention, be necessary?
When the new cabinet is formed I shall seek an interview with His Imperial Japanese Majesty’s minister for foreign affairs in order to ascertain from him the disposition of his Government in regard to granting to American citizens the rights and privileges referred to in this dispatch. I shall, however, refrain from committing my Government in any way in the matter until instructions are received from you.
I have, etc.,