893.543/9–644
The Ambassador in China (Gauss) to the Secretary of State
No. 2938
Chungking, September 6,
1944.
[Received September 18.]
Sir: I have the honor to refer to the Embassy’s
despatch no. 2569, May 16, 1944,36 transmitting a copy of an informal note of identical
date to the Minister for Foreign Affairs37
on the subject of re-registration of trade-marks under present wartime
conditions in China, and to the Embassy’s telegram 1495, September 3, 2 [3] p.m., giving a translation in summary of measures
reportedly promulgated by the Ministry of Economic Affairs governing foreign
merchants who apply for extension of trade-mark registrations during
wartime.
There is now enclosed a translation of a third-person note from the Ministry
of Foreign Affairs dated September 4, 1944, quoting a communication received
from the “appropriate authorities” and enclosing a copy38 of Accommodative Measures
Governing the Application by Foreign Merchants for the Extension of
Trade-Mark Registrations During Wartime which were promulgated by order of
the Ministry of Economic Affairs on August 14, 1944.
It will be noted from an examination of these Measures that the Chinese
Government has adopted a composite procedure embodying the elements of
present practice both in the United States and in Great Britain: foreign
merchants may submit the prescribed fee direct to the Trade-Mark Bureau as
evidence of intention to apply for extension of trade-mark registrations
(Article 3), and, in special circumstances, the Trade-Mark Bureau may extend
the time prescribed by law for fulfilling requirements during which
extension the right of exclusive use of the trade-mark shall remain valid
(Article 4). It is believed that these Measures will provide satisfactory
relief and protection to American holders of trade-mark rights in China who,
because of war conditions, are unable to comply with the regulations as
originally stipulated in the Trade-Mark Law.
Respectfully yours,
[Enclosure—Translation]
The Chinese Ministry for Foreign
Affairs to the American Embassy
[Chungking,] September 4, 1944.
The Ministry of Foreign Affairs presents its compliments to the American
Embassy and has the honor to refer to the Embassy’s letter
[Page 1005]
of May 16, 1944, concerning
the re-registration of trade-marks during wartime by American business
concerns in China and requesting that the appropriate authorities give
consideration to the adoption of accommodative measures in the matter.
Reference is also made to the Ministry’s acknowledgment of June 9, 1944,
as is on record.
The Ministry is now in receipt of a communication from the appropriate
authorities stating as follows:
“Article 5 of the Chinese Trade-Mark Law stipulates that
‘Citizens of foreign countries who desire to enjoy the exclusive
use of trademarks in accordance with treaties stipulating mutual
protection of trade-marks, shall apply for registration in
accordance with this Law’. Article 7 of the same Law provides
that ‘A person who does not have domicile or place of business
within the territory of the Republic of China may not apply for
registration of a trade-mark or perform other procedural acts.
…39 unless he appoints as his
agent someone who has a domicile or place of business within the
territory of the Republic of China’. The provisions of these
Articles must of course be applied to the exclusive use of
trade-marks held by foreign merchants or the registration for
the extension of the exclusive use of such trade-marks on
expiration.
“No difficulty whatsoever was experienced in peacetime when
foreign merchants applied for registration of extension, but
since the outbreak of the war in the Pacific foreign merchants
have found it difficult to appoint agents within the territory
of the Republic of China to perform the formalities of
registration or to uphold their rights. Moreover, when the
period for the exclusive use of a trademark expires, the right
of its exclusive use becomes extinguished unless application is
filed for an extension in accordance with law.
“With a view to facilitating foreign merchants who are unable to
perform the legal procedural acts because of the war, the
Ministry of Economic Affairs, on behalf of the Chinese
Government, has enacted and promulgated the Accommodative
Measures Governing the Application by Foreign Merchants for the
Extension of Trade-Mark Registrations During Wartime consisting
of four articles.”
The Ministry of Foreign Affairs has the honor to enclose a copy of the
Measures mentioned above for the Embassy’s information.
