File No. 406/180–181.
The Secretary of State to
Minister Rockhill.
Department of State,
Washington, May 27,
1908.
No. 468.]
Sir: With reference to the agreement between
the United States and Great Britain for the protection of trade-marks in
China effected by an exchange of notes on June 28, 1905, I inclose
herewith, for the information of the legation and of the various consuls
in China, a copy of a note dated May 19, 1908, from the British
ambassador.
You will note that under the British law existing until 1907 in China the
consent of His Majesty’s minister at Peking was necessary before a
foreigner could institute proceedings against a British subject in the
British courts in China for pirating a trade-mark which was the property
of the plaintiff. By Articles III and IV of the
[Page 524]
order in council of 1907, the consent of His
Majesty’s minister in Peking in this respect is no longer requisite.
I am, etc.,
[Inclosure.]
The British
Ambassador to the Secretary of
State.
British Embassy,
Washington, May 19,
1908.
No. 113.]
Sir: Early in 1905 an arrangement was
concluded between the United States and the United Kingdom with
regard to the mutual protection of trade-marks in China and Korea,
by admitting complainants to proceedings in the consular courts of
the respective parties.
Under the British law existing until 1907 in China, the consent of
His Majesty’s minister at Peking was necessary before a foreigner
could institute proceedings against a British subject in the British
courts in China for pirating a trade-mark which was the property of
the plaintiff.
By Articles III and IV of the order in council of 1907, the text of
which will be found annexed, this consent is no longer requisite.
The only condition precedent to proceedings being taken is either
(a) that an arrangement should be in
force between His Majesty’s Government and the government of the
State or power to which the prosecutor or plaintiff belongs, or (b) that the court should be satisfied that
effectual provision exists for the protection in consular or other
courts in China or Korea of the rights and interests of British
subjects in copyrights, trade-marks, patents, or designs, infringed
by the national of such a State or power.
I am now directed to bring this alteration in procedure to the notice
of your Government.
I have, etc.,
[Subinclosure.]
Extract from the Order in Council Relating to
the China and Korea (Amendment) Order in Council, 1907.
Buckingham
Palace,
February 11,
1907.
3. The following article shall be substituted for article 69 of the
principal order:1
Any act which, if done in the United Kingdom, or in a British
possession, would be an offense against any of the following
statutes of the Imperial Parliament or orders in council, that is to
say:
- (a)
- “The merchandize marks act, 1887;”
- (b)
- “The patents, designs, and trade-marks acts,
1883–1902;”
- (c)
- “The trade-marks act, 1905;”
- (d)
- Any statute amending or substituted for any of the
above-mentioned statutes;
- (e)
- Any act, statute, or order in council for the time being
relating to copyright, or to inventions, designs, or
trade-marks, of which a copy is kept exhibited in the public
offices of the consulates at Shanghai and Seoul, and is
there open for inspection by any person at all reasonable
times;
shall, if done by a British subject in China or
Korea, be punishable as a grave offense against the principal order,
whether such act is done in relation to any property or right of a
British subject, or of a foreigner or native, or otherwise
howsoever.
Provided—
- (1)
- That no person shall be punished under this order for an
act which would be an offense against any act, statute, or
order in council, the exhibition of which is required by
paragraph (e) above, unless such
exhibition had commenced not less than one month before the
act took place, or unless the person
[Page 525]
offending is proved to have had
express notice of such act, statute, or order in
council.
- (2)
- That a prosecution by or on behalf of a prosecutor who is
not a British subject shall not be entertained, unless
either (a) an arrangement is in force
between His Majesty’s Government and the government of the
State or power to which the prosecutor belongs, or (b) the court is satisfied that
effectual provision exists for the punishment in consular or
other courts in China or Korea of similar acts committed by
the subjects of such State or power in relation to or
affecting the interests of British subjects. Where such an
arrangement is in force the minister may issue notification
to that effect, and the court shall take notice
thereof.
4. No action shall be brought for the protection of any copyright,
trade-mark, patent, or design by any person who is not a British
subject, unless either (a) an arrangement is
in force between His Majesty’s Government and the Government of the
State or power to which the plaintiff belongs, or (b) the court is satisfied that effectual provision exists
for the protection in consular or other courts in China or Korea of
the rights and interests of British subjects in copyrights,
trade-marks, patents, and designs, infringed by the subjects of such
State or power.
Where such an arrangement is in force the minister may issue a
notification to that effect, and the court shall take judicial
notice thereof.
