Mr. Dun to Mr. Olney.
Tokyo, Japan , November 14, 1896 . (Received Dec. 5.)
Sir: I have the honor to inclose herewith a copy of a note, dated the 12th instant, from Count Okuma, His Imperial Japanese Majesty’s minister of foreign affairs, in which I am informed that the ratifications of the treaty recently concluded between Japan and Germany will be exchanged in Berlin on the 18th instant, and that the article of that treaty providing for reciprocal national treatment in the matter of protection of industrial property shall come into operation at the same time as such exchange is effected.
As you will observe, Count Okuma says in his note that, in view of the friendly and conciliatory spirit in which the United States Government met the proposals of his Government looking to the revision of the existing treaties between the respective countries, his Government is especially desirous of avoiding everything having the appearance of a desire on their part to discriminate against the citizens of the United States in the matter of the protection of industrial property, and that, therefore, his Government will be happy to consult entirely the wishes of the Government of the United States with reference to bringing into operation Article XVI of the new treaty between the United States and Japan at any time after the exchange of the ratifications of the new treaty between Japan and Germany has been effected.
[Page 433]If the proposal of the Japanese Government to bring into immediate operation Article XVI of our treaty with Japan proves acceptable to the United States, the minister of foreign affairs suggests, in view of the justice of the proposition, that those who are entitled to the benefits of a law should rest under obligations to obey its provisions; that those stipulations of Article XVIII of the new treaty, so far as questions relating to the protection of industrial property under the laws of Japan are concerned, shall be brought into operation simultaneously with Article XVI. If, however, this suggestion shall not be acceptable to the United States, Count Okuma expresses the belief that the United States will be prepared to undertake that the industrial property laws of Japan shall, during the time the new treaty remains in abeyance, be enforced by the United States courts in Japan.
This proposal of the Japanese Government is, in my opinion, of so much importance to citizens of the United States that I deemed it necessary to telegraph to you on the 13th instant the substance of the Count’s note, and in order that our countrymen might at the earliest time possible be placed on an equal footing with the peoples of other countries in the enjoyment of protection of their industrial property in Japan I suggested that I be empowered to conclude a convention with Japan to that end.
Since my dispatch No. 410, of date September 14 last, was written I have received the Foreign Relations, Part II, 1895, and have read the correspondence between the Department and Mr. Alexander, our minister at Athens, upon the subject of trade-marks, etc., and conclude from the ruling announced in Mr. Gresham’s instruction to Mr. Alexander, No. 43, of February 21, 1895, confirmed by your instruction No. 75, of November 9, 1896, that a formal convention will be necessary to bring Article XVI of our new treaty with Japan into operation.
I am informed by Baron von Gutschmid, the German minister at this court, that no definite understanding or arrangement has been reached between his Government and that of Japan in regard to the enforced observance by German subjects of Japan’s industrial property laws. The German courts will continue to exercise jurisdiction over German subjects in cases of infringement of those laws as well as in all other matters, and it seems that the penalties to be imposed for the violation of those laws will be entirely within the province of the German courts to determine.
If a convention for the protection of industrial property be concluded between the United States and Japan, I am of the opinion, for many reasons which will doubtless occur to you, that jurisdiction over American citizens in all questions pertaining thereto should remain in the United States courts in Japan until the new treaty comes into force and extraterritoriality is abolished. At the same time I concur in Count Okuma’s proposition “that those who are entitled to the benefits of a law should themselves rest under obligations to obey its provisions,” and therefore it seems to me but just that the United States should undertake through her courts to enforce in every particular the industrial property laws of Japan so long as her citizens enjoying the benefits of those laws are subject only to our jurisdiction.
Awaiting your instructions in this matter, I have, etc.,