The Acting Secretary of State to Minister Rockhill.
Washington, August 17, 1905.
Sir: Mr. Conger, with his No. 1842 of March 28 last,a inclosed a pamphlet containing proposals for amending the trade-mark regulations governing the registration of trade-marks in China, published by the Deutsche Vereinigung, and with his 1877 of May 5 lasta he inclosed a copy of a project formulated by the diplomatic representatives in China of Great Britain, Germany, Italy, and Austria, intended to serve as a basis for negotiations on the subject of the registration of trade-marks in China.
These two dispatches have been considered by the Secretary of the Interior and the Commisisoner of Patents, and I inclose herewith for your information and guidance their views thereon.a
You will observe that they find that the project inclosed with Mr. Conger’s No. 1877 is in accordance with the general construction of the trade-mark laws of this country and most European countries, and that it is not objectionable in any material regard, excepting section 25, which reads as follows:
All demands of registration made by means of the competent Chinese authorities before the going into force of the present regulation shall be considered as having been made the day of the regulation going into force.
It is pointed out that this section may destroy the effect of registrations effected by American owners of trade-marks under the trademark regulations heretofore published. It would appear just that the effect of such regulations should not be impaired.
They also call attention to the fact that section 22 of the project referred to, which reads as follows:
One can not be prosecuted in any case who shall prove that he first lawfully in any country made the use which he “loyally” continues, of the same mark before the registration opposed to him in China,
has been replaced in the pamphlet published by the Deutsche Vereinigung (inclosure 2 in No. 1842) by an article providing for the destruction of counterfeit trade-marks and the receptacles and signs bearing such trade-marks.
The Commissioner of Patents points out that the retention of section 22 of the project is of the greatest consequence from the American point of view; that its exclusion by the Deutsche Vereinigung represents the German view of trade-mark in which the property right arises from and depends upon registration; while the American trade-mark position is and always has been predicated upon the origin of the property right in adoption and use.
In view of the opinion expressed by the Secretary of the Interior and the Commissioner of Patents, that it is desirable that some adequate system be adopted by the Chinese Government at the earliest possible time, you will, as desired by them, offer no objection to the adoption of the project further than to the probable effect of section 25, as herein pointed out.
I am, sir, etc.,