File No. 893.543 C 42/5.

Chargé MacMurray to the Secretary of State.

[Extract.]
No. 761.]

Sir: In further reference to the case arising out of the sale by Chinese dealers of a Japanese infringement of the Vaseline trademark, I have the honor to transmit for the information of the Department, copies of further dispatches17 from the Consulate General at Shanghai which indicate the final settlement arrived at in the case.

The judgment in this case, releasing the defendants but detaining, under circumstances which are tantamount to confiscation, the stock of goods bearing the infringing trade-mark, is not wholly unsatisfactory, inasmuch as it implies a recognition of the trade-mark rights of the American owners, and of the jurisdiction of the Chinese court in enforcing those rights as against Chinese dealers in the infringement. The judgment is unsatisfactory, however, in that it leaves those principles to inference, and cannot but appear inconclusive by reason of that fact and of the further fact that no definite penalty was imposed upon the defendants, nor was there even a direct statement of their guilt. In order to obtain a more conclusive judgment on the question at issue, I have taken occasion to suggest to Consul Gauss that he discuss with the attorneys for the American owners of this trade-mark the feasibility of their instituting new criminal proceedings against other dealers in the infringement, or (preferably) of [Page 253]seeking in the Mixed Court a civil injunction restraining the defendants in the present criminal case from further dealing in the infringement.

The Minister for Foreign Affairs has not yet replied to my note of August 30 last, although his secretary some days ago advised the Chinese Secretary of the Legation that a copy of the compromise judgment, as signed on September 4, had been received by the Ministry, and would shortly be communicated to the Legation in reply to that note.

I propose, upon receiving such explanations as the Foreign Office may offer in regard to the fundamental discrepancy between the English and Chinese versions of the judgment, as pointed out to it in my note of the 30th ultimo, to emphasize the fact that the Chinese version originally recorded by Magistrate Kuan was categorically opposed to the instructions which the Minister for Foreign Affairs personally promised me to send him, and which Dr. Yen told me explicitly, on the 11th ultimo, had been telegraphed to Magistrate Kuan, to the effect that the Mixed Court should exercise full jurisdiction in the case.

I have [etc.]

J. V. A. MacMurray.
  1. Not printed.