File No. 406/262–263.
Chargé Jay to the
Secretary of State.
American Embassy,
Tokyo, September 19,
1908.
No. 443.]
Sir: Referring to my dispatch No. 419, of
August 29, 1908, on the subject of the protection of trade-mark
registrations in Japan, I have the honor to inclose herewith copy of an
official note from Count Komura, minister for foreign affairs, to the
British ambassador, in which it is stated that according to the
interpretation of the administrative authorities concerned “under the
trade-mark law at present in force in Japan it is not necessary, in
obtaining registrations of a trade-mark, to have a business in Japan at
the time, nor does the right of exclusive use of a trade-mark expire if
the trade-mark [Page 536] is not used, so
long as the business is not ceased. As regards foreign registered
trade-marks which have been registered also in Japan and are under the
protection of the Japanese trade-mark law, the right of exclusive use of
such marks does not expire even if the business and the use of the
trade-mark be ceased in Japan and in places to which the protection of
the Japanese trade-mark law extends, unless business be also ceased in
the foreign country.”
I have, etc.,
[Inclosure.]
The Minister for Foreign
Affairs to the British
Ambassador.
Department of Foreign Affairs,
Tokyo, September 5, 1903.
Sir: I have the honor to acknowledge the
receipt of your excellency’s note of the 26th June, inquiring
whether, in the event of a convention being concluded between Great
Britain and Japan for the mutual protection of trademarks in China
and Korea, and if His Majesty’s Government agreed to accord complete
reciprocity, the Japanese Government would give the protection of
the contention to the proprietors of British trade-marks registered
in Japan but used only in China and Korea. Your excellency asked, as
an example, for an expression of opinion on the point whether,
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 in Japan, but continued the use
of the mark in China, it would or would not be possible for an
interested party to demand the cancellation of the registration of
the mark under Article XII of the Japanese trade-mark law on the
ground of the cessation of the business for which the mark was used
by the proprietor. Your excellency added that, supposing it were
possible under the law now in force to obtain the cancellation of a
reigstered trade-mark under the circumstances mentioned above, there
would be no reason for concluding a convention, unless an assurance
were obtained from the Japanese Government which would cover such
cases.
In reply I have the honor to state that all revisions of Japanese
laws require the assent of the legislative assembly, and the
administrative departments are quite unable to interfere therein.
The interpretation of the laws is decided according to the
independent opinion of the authorities concerned, who investigate
any particular case. I regret, therefore, that I can not venture to
give the assurance of the Japanese Government desired by your
excellency in regard to the circumstances mentioned. But in order to
ascertain the opinion on the point of the administrative authorities
concerned, I at once referred the substance of your excellency’s
communication to the minister of agriculture and commerce, and I am
now in receipt of his reply, which is to the effect that under the
trade-mark law at present in force in Japan it is not necessary, in
obtaining registration of a trade-mark, to have a business in Japan
at the time, nor does the right of exclusive use of a trade-mark
expire if the trade-mark is not used, so long as the business is not
ceased. As regards foreign registered trade-marks which have been
registered also in Japan and are under the protection of the
Japanese trade-mark law, the right of exclusive use of such marks
does not expire even if the business and the use of the trade-mark
be ceased in Japan and in places to which the protection of the
Japanese trademark law extends, unless business be also ceased in
the foreign country. But if a trade-mark is not a foreign registered
trade-mark, but is merely a trademark registered by a foreigner in
the same way as a Japanese in Japan only, the right of exclusive use
of the mark expires with the cessation of business in Japan and
places to which the protection of the Japanese trade-mark law
extends. He considers, moreover, that the cancellation of
registration due to the expiration of the right of exclusive use of
a trade-mark is carried out by official authority of the patent
bureau in accordance with heading No. 13 of article 14 and article
17 of the detailed regulations for carrying out the law of
trade-marks and article 71 of the detailed regulations for carrying
out the patent law, and not by means of a legal suit or (patent
bureau) trial.
I take, etc.,
