File No. 406/242–244.
Chargé Jay to the
Secretary of State.
American Embassy,
Tokyo, August 29,
1908.
No. 419.]
Sir: With reference to the department’s
instruction No. 174 of July 16 last1, on the subject of protection of trade-mark
registrations in Japan, I have the honor to inclose herewith copies of
correspondence between the Japanese officials and the British Embassy of
Tokyo, which have kindly been placed at my disposal by the latter.
It appears from the letter of Mr. Nakamatsu, the director of the patent
bureau, to Mr. Crowe that Article XII of the Japanese trademark law is
interpreted to apply only to cases where business had actually been
begun in Japan and thereafter discontinued and does not apply to cases
where no business at all has been done in Japan.
Mr. Nakamatsu further asserts that there is no provision in Japanese law
in virtue of which a registered trade-mark can be canceled on the ground
that business has not been begun in Japan.
[Page 528]
The British Embassy has addressed an inquiry to the Japanese foreign
office for further information on this subject and I have been promised
a copy of their reply when it is received.
I have, etc.,
[Inclosure 1.]
The Director of the Japanese
Patent Office to Mr. E. F.
Crowe.
Sir: In reply to your letter of the 11th
instant I beg to say that Article XII of the Japanese trade-mark law
is applicable only to the case where business has been discontinued
in which a registered trade-mark was in use, but not to the case of
nonuse of a registered trade-mark. Nor is there any provision in the
law by which a registered trade-mark can be canceled on the ground
that it has not been used, or on the ground that the person who had
had the trade-mark registered has not begun business at all.
I have, etc.,
[Inclosure 2.]
The British
Ambassador to the Japanese Minister
for Foreign Affairs.
M. le Ministre: With reference to the
convention for the mutual protection of trade-marks in China and
Korea which it has been proposed to conclude between our two
Nations, I have the honor to inform your excellency that I have been
instructed by His Majesty’s Prince, secretary of state for foreign
affairs, to obtain definite information from your excellency on the
following point:
There are probably a great many British trade-marks which are used in
China and Korea, but not in Japan, which the owners thereof would
desire to have protected in China and Korea from imitation by
Japanese.
If the convention is signed, will the Imperial Japanese Government be
prepared in any case to vest their courts in China and Korea with
power to deal with cases of piracy by Japanese subjects in those
countries of British marks registered in Japan with the object of
obtaining such protection and not necessarily with a view to use in
Japan, conditionally upon His Majesty’s Government according
complete reciprocity?
In other words, would the Imperial Japanese Government consider that
owners of British marks registered in Japan but used only in China
and Korea will be entitled to the benefits of the convention when
signed?
For example, I would like an expression of opinion from your
excellency on the following point:
Article XII of the Japanese trade-mark law says: “The right of
exclusive use of a trade-mark expires with the cessation of the
business for which it is used by the proprietor.”
Supposing that a British subject registered a trade-mark in the
Japanese patent bureau for goods which he was dealing in in Japan
and China, and that he subsequently found the mark unsuited to the
Japanese market and gave up using it here, but continued the use of
the mark in China, would it be possible for an interested party to
demand the cancellation of the mark on the ground of the cessation
of the business in Japan for which the mark was used by the
proprietor?
If under the present law a mark could be canceled under such
circumstances as detailed above, I venture to think that your
excellency will see that some assurance from the Japanese Government
which would cover cases of this sort will be required before any
convention can be concluded.
I take, etc.,
