Papers Relating to the Foreign Relations of the United States, With the Annual Message of the President Transmitted to Congress December 3, 1906, (In two parts), Part I
Minister Conger to the Secretary of State.
Peking, China, August 15, 1904.
Sir: Referring to your No. 797 of May 19 last, I have the honor to transmit herewith a copy of the trade-mark regulations which have now received imperial approval and will be put tentatively in force on the 23d of October next.
I inclose also copies of correspondence with the foreign office and with Consul-General Goodnow concerning them.
I have the honor, etc.,
- Anyone, no matter whether Chinese or foreigner, who desires to have the exclusive use of a trade-mark must first register the same according to these regulations.
- A distinctive design, inscription, and emblem, either all three employed in combination or any one or two of them, constitute the essential characteristics of a trade-mark.
- The board of commerce will establish a bureau of registration to attend especially to matters of registration, and the customs at Tientsin and Shanghai will serve as branch offices for receiving applications to the greater convenience of those who apply, who may present their petitions at the place nearest to them.
- Applicants for registration may either send their applications direct to the bureau of registration or forward them through a branch office of application.
- Every application must be accompanied by a description, in which there shall be inclosed three impressions of the trade-mark. The description shall clearly and correctly explain in a general way the pattern of the trade-mark and tell on what sort of goods it is to be used, and to what class they belong according to the classification appended to the subordinate rules annexed to these experimental regulations. If the application be forwarded through a branch office of application, duplicates must be made both of the application and the description.
- The bureau of registration, having received an application, and having found nothing in it contrary to the requirements, shall file the same for six months, and if within that time no person shall have petitioned against the registration, the said trade-mark shall be registered.
- If applications be made for the registration of trade-marks which are similar to one another and which are to be used upon the same sort of goods, registration must be granted to the one first making application. If the several applications be presented at the same time on the same day, permission to register must be given to all.
- In case of a trade-mark already registered in a foreign country, if application for its registration in China be made within four months from the date of its registration abroad, the date of such registration abroad may be recognized.
- Trade-marks of the character specified below shall be refused
- Those which destroy respect for rank, do injury to the customs of the country, and (are likely to) deceive the people.a
- Those which imitate the impressions of seals especially reserved for the use of the Government (such as the Imperial seal and the oblong lead seals of the various yamens), or which imitate the designs of the Imperial flag, the military banners, or decorations conferred for merit.
- A trade-mark identical with one already registered belonging to another person or identical with one in public use in China more than two years before the present application shall have been made, or trade-marks similar to either of the above, if used upon the same sort of goods.
- Those which can not be recognized by some distinctive feature.
- The term during which any merchant, Chinese or foreigner, may be allowed exclusive use of a trade-mark shall be twenty years, beginning with the date of registration by the bureau. But trade-marks already registered in another country and for whose registration here application shall have been made according to the regulations, shall be allowed a term of exclusive use corresponding to that provided for in the registration abroad. (But in no case shall such term extend beyond twenty years.)
- If, after the expiration of the term of exclusive use, it should be desired to extend such term, and application for a renewal of registration be made within six months before the expiration of the term of exclusive use, such application for renewal may be allowed.
- Should the owner of a trade-mark already registered desire to sell to some one else the right to its exclusive use, or should he find it necessary to share its exclusive use with others, he must at once make application at the bureau of registration for registration of the change.
- If any trade-mark already registered shall be found to violate the provisions of (i), (ii), and (iv) of regulation 8, the bureau of registration may cancel the registration of such trade-mark.
- If a trade-mark already registered shall be found to violate the provisions of regulation 6, or those of (iii) of regulation 8, the injured party may make application to have the registration of such trade-mark annulled. But this provision shall not apply to any trade-mark already registered for three years.
- If, upon application having been made for the registration of a trademark, the bureau of registration shall find that such trade-mark does not comply with the requirements the bureau shall indorse clearly upon the rejected application the reasons for refusing registration.
- Any person unwilling to submit to the refusal mentioned in the preceding regulation may within six months after the date of the said refusal present a statement of facts and request the bureau of registration to reconsider the application.
- If, in any application for the registration of a trade-mark, the owner of the trade-mark shall not be in China, or if he should reside at a considerable distance from the bureau of registration, he must select a reliable friend and report him as his agent or representative.
- Should anyone desire to make a copy of any records in the trade-mark registration files, or examine the same, he may make application for such privilege either at the bureau of registration or at one of the branch offices. If he shall reside at a considerable distance his agent or representative may make such application.
- The bureau of registration shall publish trade-mark reports announcing therein, for the information of the public, what trade-marks have been registered and the circumstances connected with the cancellation of any registration.
- Should anyone infringe the right to the exclusive use of a trade-mark the owner thereof may bring suit against the offender, who shall be required to pay damages if investigation sustain the charges made.
- In case of a suit for the infringement of a trade-mark procedure shall be as follows: (1) If the defendant be a foreigner, the local magistrate shall send a dispatch informing the consul of defendant’s nationality, and shall sit with him in a trial of the case. (2) If the defendant be a Chinese, the consul concerned shall send a dispatch informing the local magistrate, and shall sit with [Page 239]him in a trial of the suit. (3) If both parties to the suit should be foreigners, or if both parties should be Chinese, immediately upon information being given of the infringement, the court or officer having jurisdiction will take action as required, so that due protection may be given.
- Anyone guilty of any of the following offenses may be punished
with not more than one year’s imprisonment and not more than 300
taels fine, but no action shall be taken against any such
offender except after suit duly brought by the injured party.
- Imitation of another’s trade-mark with the purpose of using such imitation upon the same sort of goods as that on which the original is used, or selling such imitation.
- Making an imitation of another’s trade-mark and using the same upon the same sort of goods as those upon which the original is used, or, with a knowledge of the circumstances, selling such goods or storing them with the intention to sell.
- Using the imitation of another’s trade-mark as a shop sign in advertisement or placard.
- While knowing that the receptacle used by another (such as large or small box, bottle, jar, etc.) or the wrapper bears a registered trade-mark, yet using the same for goods of the same sort as the originals, or, while knowing the circumstances, selling such goods.
- Purposely importing such goods into any port, knowing well that such action will injure (the sale of) another’s goods which bear a registered trademark.
- When on account of the circumstances set forth above such counterfeit trade-marks, or the instruments used in making them, are seized and confiscated, the goods, receptacles, and signs bearing such trade-mark, since it can not be distinguished from the genuine, shall all be destroyed.
- Fees for application, registration, and issue of certificates,
etc., shall be paid by all persons, whether Chinese or foreign
merchants, as follows:
- Application fee, Kuan-p’ing taels 5 each mark.
- Fee for registration and issue of certificate, Kuan-p’ing taels 30 each mark.
- Registration of transfer of rights, by contract of sale or partnership, Kuan-p’ing taels 20 each.
- Application for extension of expired term and renewal of registration, Kuan-p’ing taels 25 each.
- Copy of record of registration of trade-mark, Kuan-p’ing taels 2 (for every 100 characters over 100, 50 tael cents additional).
- Examination of records, for each half hour, Kuan-p’ing taels 1.
- Duplicate lost certificate, Kuan-p’ing taels 10 each.
- Filing complaint of infringement, Kuan-p’ing taels 5 each.
- Application for reconsideration of rejected trade-mark, Kuan-p’ing taels 5 each.
- Application for cancellation of registry, Kuan-p’ing taels 30 each.
- Transfer of certificate to heirs, Kuan-p’ing taels 5 each.
- These regulations shall be of force from and after Kuanghsu XXX Year, Ninth Moon, 15th Day (October 23, 1904).
- Inasmuch as mutual protection is required by the treaties, if, before the bureau of registration shall have entered upon its duties, request for the registration of any trade-mark shall have been presented at any yamen having jurisdiction the bureau shall regard the application as having been already properly made.
- If within six months after the bureau shall have commenced operations application shall be made for the registration of trade-marks which were already registered in another country before the bureau began its work, the bureau shall recognize such trade-marks as entitled to precedence.
- Although before the bureau shall have been established various officials may have issued proclamations giving protection to various trade-marks, such marks shall not receive the benefit of protection unless within six months after the opening of the bureau application shall have been made for registration according to the provisions of these regulations.
- The provisions of the three regulations immediately preceding are independent of the requirements of regulation 5.
All of the above regulations are to be put into operation experimentally. Matters not fully provided for in them may be taken into consideration and rules referring to them be added after these shall have gone into effect.
- For instance, such as use official emblems or employ pictures which Chinese may regard as improper.↩