893.543/9–644

The Ambassador in China (Gauss) to the Secretary of State

No. 2938

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,

C. E. Gauss
[Enclosure—Translation]

The Chinese Ministry for Foreign Affairs to the American Embassy

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.

  1. Not printed.
  2. Ante, p. 986.
  3. Latter not printed.
  4. Omission indicated in the original communication.