File No. 893.54/324.
Chargé MacMurray to the Secretary of State.
Peking, September 7, 1915.
Sir: In continuation of despatch No. 695 of July 20 last, with which the Legation forwarded for the information of the Department certain correspondence in regard to the infringement of the Vaseline trade-mark, I now have the honor to enclose copies of further correspondence on this subject.
I regret that, by reason of the necessity of despatching the pouch in time to catch the S. S. Manchuria, I must forward this correspondence without awaiting the fuller report on the case which is being sent by Consul Gauss. I must therefore confine myself at this time to such comment as is necessary to explain the recent developments of the case, reserving for the future such conclusions and recommendations as I anticipate it will be necessary to bring to the attention of the Department.
In the phase of the case which was reported in my No. 695 of July 20, the efforts of Mr. Gauss were primarily directed towards disabusing the minds of the special commissioner for foreign affairs, and the magistrate of the Mixed Court of an impression which they seemed to have derived during the period before Mr. Gauss assumed charge of the Consulate General in early July, that the matter was one on which the American Government had no decided views and to which it attached no importance. The efforts of the Legation were similarly directed towards impressing upon the Foreign Office a realization of the fundamental importance and significance of the case, alike from the viewpoint of American trade-mark rights under the treaties and from that of the Chinese Government as involving a new encroachment upon its sovereignty. As indicated in my previous despatch, the Minister of Foreign Affairs received these representations with apparently complete and sympathetic appreciation of the issues involved, and repeatedly gave satisfactory assurances in reply to my various requests that the Shanghai authorities be instructed [Page 247]in the sense of the views which he apparently shared with the Legation. In making these requests, I endeavored to make it plain that the Legation assumed no right to influence the decision of the Mixed Court on the merits of the case, but desired and insisted solely that no other outside influence should be permitted to cause the court to renounce its obligation to give justice to the American complainants as against persons under its jurisdiction violating Chinese law as established in accordance with our treaty rights. These representations were apparently so successful that on August 11 Dr. Hawkling L. Yen, his secretary, took occasion to inform me that on the previous day the Minister for Foreign Affairs had telegraphed through the special commissioner for foreign affairs at Shanghai the specific and categorical instruction that the Mixed Court should exercise full jurisdiction in the case. It was therefore not surprising, though very gratifying, to receive from the Consulate General at Shanghai the telegram of August 19 reporting that the Mixed Court had given judgment in favor of the American owners of the trade-mark, sustaining the principle of priority as against the Japanese contention that the rights of the American owners in China had been annulled by the action of Japanese manufacturers in registering the mark as their own in Tokyo.
It was, on the other hand, a matter of the keenest disappointment and chagrin to receive the telegram of August 23 in which the Consulate General reported that, after the departure of the American assessor on leave, it had been discovered that the Chinese version of the judgment was radically different, and even contradictory to the English judgment as reported to the Consulate General by the assessor. I took prompt occasion to see the Minister for Foreign Affairs and sought to impress upon him the incompatibility of this Chinese judgment with the instructions which he had sent to Shanghai,
The report from Consul Gauss, under date of August 25, was received on the 28th ultimo. I at once brought the substance of this report to the attention of Dr. Yen, orally, and asked for an appointment to discuss it with the Minister. In the meanwhile, I addressed to the Foreign Office a note under date of the 30th ultimo, upholding the position taken by the Consulate General; namely, that the English text of the judgment, as discussed between the American assessor and the magistrate, and agreed upon between them, and read and recorded by the assessor, should be considered and executed as the authoritative text.
It proved impossible to arrange an appointment with Mr. Lou until the 31st ultimo; he outlined to me a “full report” that he had received from Magistrate Kuan, which made no mention at all of the English judgment, but reported that the judgment as drafted and read and entered by him in Chinese was fully concurred in by the American and Japanese assessors. I reminded Mr. Lou that the Japanese assessor was not sitting in the case and had no locus standi in reference to it; and in regard to the concurrence of our assessor, I pointed out that the magistrate’s statement on that point was flatly negatived by the directly contradictory judgment which Mr. Bishop had read and entered on the English charge sheet. The Minister then talked of the unfortunateness of the misunderstanding that had arisen, and said that it would require a great deal of investigation [Page 248]to clear up; and he said he would ask the magistrate to report concerning the English judgment to which he had omitted to make reference in his despatch, and offered to communicate with me further when that supplementary report should have been received. I remarked that the immediate question was whether or not Americans could obtain from a Chinese court the enforcement of their rights under the treaties. Mr. Lou asked what could be done; and I repeated the suggestion contained in my note of the previous day, that the English judgment should be regarded as authoritative, and so executed, the magistrate meanwhile amending his unsigned Chinese version so as to bring it into accord with the English judgment that had in fact been agreed upon. I went on to say that after all it was not for our Government to devise a way out of the difficulty, but simply to hold the Chinese Government to full compliance with our treaty rights by whatever means might be available under the Chinese system; and, in conclusion, I remarked that it was essential to know whether we could count upon Chinese sovereignty to enforce our rights, or whether that sovereignty was disposed to renounce in favor of a foreign government the fulfilment of its obligations towards the United States. I could obtain from the Minister for Foreign Affairs, however, no more definite statement than that he would look into the matter diligently and see what could be done.
The telegram from Consul Gauss under date of the 4th instant, and his despatch No. 583 of the same date report what appears to be the final settlement of the case. I can not but concur in his decision that this final compromise judgment must be accepted as the best result obtainable under the circumstances.