As indicative of the reply sent to each of these ambassadors, I inclose
herewith a copya sent to the
French ambassador.
memorandum.—trade-marks in china.
German Embassy, January 18, 1906.
The representatives of Great Britain, France, Austria, Italy, and
Germany some time ago made representations in Peking with regard to
the regulations on trade-marks. The Chinese Government agreed to the
proposed changes. Mr. Rockhill explained that the State Department
likewise agreed except with those enumerated in article 25 of the
project.
The representatives of the first-mentioned powers fear grave dangers
for their trade interests if article 25 should be omitted. The
reason they give is that such countries, situated near China, would
gain unjust advantages over those which geographically are placed at
a greater distance, because the merchants of the former would be
able to use the trade-marks at a much earlier date.
memorandum to german ambassador.
Department of State,
Washington, February 17,
1906.
The Department of State and that of the Interior have given
consideration to the memorandum of the German embassy, dated January
18, 1906, looking to the withdrawal of the objection raised, under
instructions, by the American minister at Peking to section 25 of
the project for regulations governing the registration of
trade-marks in China, formulated by the representatives of Germany,
Austria, France, Great Britain, and Italy.
Section 25 in question reads:
“All demands of registration made by means of the competent Chinse
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.”
The probable effect of this section would be to destroy the priority
of date which may have been made under the trade-mark regulations
heretofore published, and to reduce the effect of such registrations
to the day of going into force of section 25 in question.
It is necessary in this connection to give consideration to section 7
of the project, which reads as follows:
“If within a delay of four months, counting from the day of
registration of a trade-mark in a foreign country, there is
presented a demand of registration in China of this mark, the
original date of registration in the foreign land must be recognized
if the demand is accompanied with the production of a writing
certifying the registration made in the foreign land.”
It appears from reports of the American consuls-general at Shanghai
and Tientsin that last year four American firms at Shanghai and
sixteen American firms at Tientsin filed applications for
registration of trade-marks in the bureaus heretofore established at
those places.
Now, if section 7 and section 25 both remain in this project, these
twenty American firms who have effected registration of their
trade-marks under the provisional regulations heretofore promulgated
would be stripped by section 25 absolutely from any priority arising
from the fact of such registration, and the day after the new
regulations of the present project become effective, if each of
these American firms shall file application for registration of
these marks, it may meet upon that day a demand of registration
filed by a subject or citizen of one of the European powers named,
whose demand, filed that day, will be entitled to a priority of four
months by reason of a demand of registration filed within that
period in some European trade-mark registry bureau.
In such case the actual legal right already secured and vested in
this American firm by reason of its prior actual registration under
the provisional regulations in China is destroyed, while an
effective and controlling priority will be given by virtue of
section 7 to this European competitor, whose registration in Europe
has been effected many months later, for it is to be observed that
this project is to take effect one year after its publication in the
Gazette of Peking.
The priority provisions of section 7 correspond to the priority
provisions of the International Convention for the Protection of
Industrial Property, and are intended to furnish a limited working
period within which any unjust advantage derived from geographical
proximity may be overcome. This Government is
[Page 252]
not disposed to question the general
utility of delayed priority, but its value and existence bear no
possible relation to the concomitant demand embodied in section 25,
that existing property rights of American citizens should be struck
down.
This Government can see no ground for apprehension on the part of
other powers that there will be grave dangers for their trade
interests if section 25 is omitted. On the other hand, grave dangers
may be feared to the financial interests of the twenty American
firms heretofore referred to if their existing rights swept away by
section 25 of the project. This Government proposes as an amendment
to section 25 the following:
“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 assimilated to the right of priority provided
by section 7, and shall be effective from their dates.”
