priority to those provided by section 7 should be adhered to; but if they acquired no rights by such registrations, the proposed modification of section 7 and the retention of section 25, as suggested by the German Government, may be concurred in. The conclusion reached by the Commissioner of Patents is concurred in by me. Very respectfully, E. A. HITCHCOCK, Secretary. Minister Rockhill to the Secretary of State. [Telegram-Paraphrase.] PEKING, August 17, 1906. (Mr. Rockhill reports that in reference to instructions 159 from the department, he has inquired through the United States consuls at Tientsin and Shanghai. They say American merchants are inclined to believe they may have acquired some rights by filing under the provisional regulations. Chinese foreign office note of December 22, 1904, inclosed, does not apparently affect the fact that several days application for registration was lawful. Japanese probably filed very many more than Americans. Other nationalities may have also. For reasons given on page 2, paragraph 2, of the instruction from the department he advises acceptance German proposal.) No. 199.] The Secretary of State to Minister Rockhill. DEPARTMENT OF STATE, Washington, October 15, 1906. SIR: I have to acknowledge receipt of your dispatch No. 384," of the 30th of August, regarding the acceptance of the project for trademarks in China prepared by the representatives of Germany and other powers. Your statement that "though the stand taken by the American Government from the outset has been right and just," you "do not think that, as far as can be judged in the prevailing confusion, American-acquired rights would suffer materially if the Government were, in the interest of harmony, to modify its attitude and come to an agreement with Germany and the other powers," coincides with my view. I have accordingly written to the German ambassador in reply to his note of the 12th of May, copy of which was inclosed to you in department's No. 159, of the 30th of June last, to the effect that if Germany and the other powers interested will agree to the addition to article 7 suggested by him, this Government would withdraw its objection to article 25. A note to the same effect has been sent to the French and British ambassadors. Copies of these three notes are inclosed herewith for your information, and you will be advised what further action is taken in connection therewith. I am, etc., a Printed on page 258, infra. ELIHU ROOT. No. 546.] The Secretary of State to the British Ambassador. DEPARTMENT OF STATE, Washington, October 15, 1906. EXCELLENCY: In my note of the 17th of February last I had the honor to inclose a copy of a memorandum regarding the protection of trade-marks in China, in reply to the memorandum of the German ambassador of January 18, 1906. In a note of the 12th of May the German ambassador submitted some remarks of his Government on this memorandum, which have had my careful consideration, and I have now written to the German ambassador that this Government is prepared, on certain conditions, to withdraw its objection to section 25 of the project for the protection of trade-marks in China formulated by the representatives at Peking of Germany, France, Italy, Austria-Hungary, and Great Britain. I have the honor to inclose for your information copies of these two notes. Upon the acceptance by the Governments named above of the addition to article 7 as stated to the German ambassador, the American minister at Peking will be instructed to agree to the project formulated by the representatives of the above-mentioned powers. I have the honor, etc., No. 444.] ELIHU ROOT. The Secretary of State to the German Ambassador. DEPARTMENT OF STATE, Washington, October 15, 1906. EXCELLENCY: Referring to your note of the 12th May and to this department's acknowledgment thereof of the 30th June, I have the honor to inform you that this Government has given careful consideration to your request to withdraw the objection heretofore raised to article 25 of the project for the protection of trade-marks in China prepared by the representatives at Peking of Germany, France, Italy, Austria-Hungary, and Great Britain. This Government is prepared to make this withdrawal on the understanding that the German Government and the other Governments above named shall agree to the addition to article 7 suggested by you, viz: "the right of priority shall extend only to such trademarks as have been registered in a foreign country after the going into effect of the law." You state that the German Government would offer no objection to this addition, and it is to be presumed that it would be equally unobjectionable to the other powers. You are requested to advise your Government that upon the acceptance of the above modification of the regulations formulated by the representatives of Germany, Austria-Hungary, France, Great Britain, and Italy, this Government will at once adhere thereto and will so advise the American minister at Peking. Accept, Excellency, the renewed assurances of my highest consideration. ELIHU ROOT. The Secretary of State to the French Chargé d'Affaires ad interim. No. 342.] DEPARTMENT OF STATE, Washington, October 15, 1906. SIR: In my note of the 17th of February last I had the honor to inclose a copy of a memorandum regarding the protection of trademarks in China, in reply to the memorandum of the German ambassador of January 18, 1906. In a note of the 12th of May the German ambassador submitted some remarks of his Government on this memorandum, which have had my careful consideration, and I have now written to the German ambassador that this Government is prepared, on certain conditions, to withdraw its objection to section 25 of the project for the protection of trade-marks in China formulated by the representatives at Peking of Germany, France, Italy, AustriaHungary, and Great Britain. I have the honor to inclose for your information copies of these two notes. Upon the acceptance by the Governments named of the addition to article 7 as stated to the German ambassador, the American minister at Peking will be instructed to agree to the project formulated by the representatives of the abovementioned powers. Accept, sir, the renewed assurances of my high consideration. ELIHU ROOT. AIDE MÉMOIRE (FROM THE GERMAN EMBASSY). WASHINGTON, November 2, 1906. On April 23 of last year Mr. Rockhill informed the German minister in Peking and through him the representatives of Great Britain, France, and Austria that the United States Government found the project of a measure for the protection of trade-marks in China unobjectionable in any material regard excepting the proposed section 25, which reads as follows: "All demands of registration made by means of the competent Chinese authorities before the going into force of the present regulations shall be considered as having been made the day of the regulations going into force." It was contended that this section might destroy the effect of registration filed by American owners of trade-marks under the trademark regulations heretofore published, and that the effect of such regulations should, in fairness to such owners, therefore not be impaired. The representatives in Peking concerned in the elaboration of this project have given their most earnest consideration to the objection raised by Mr. Rockhill against section 25, but in view of the instructions received from their respective Governments were, to their great regret, unable to assent to the modification suggested by the State Department, by which such registrations filed at an anterior date should rank according to their priority. The Imperial Government sees grave grounds for apprehension if section 25 is omitted or modified. The object of this article is to a Inclosures to No. 159 of June 20 to Minister Rockhill (supra). 59605-FR 1906-17 prevent such persons who are able, in consequence of the favorable geographical proximity of their country, to proceed immediately after publication of this trade-mark law with the registration of trade-marks to take undue advantage of such persons, who, living at a greater distance, receive later information of this law and can only register their trade-marks after a longer lapse of time. The Imperial Government appreciates the view of the State Department that a certain number of American firms who have already effected their demands of registration might be in a better position, if the provisions of priority were based on the priority of date made under the trademark regulations heretofore published as suggested. It is pointed out, in connection with this, that several European firms are in this same position. In the opinion, however, of the Imperial Government such minor considerations should have no weight as opposed to the general disadvantages which would evolve from such admission of the principle of priority and which would affect the great bulk of distant firms concerned in trade with China. There seems to be no doubt on this head that the interests of the United States move on the same lines as those of the other powers concerned. It is earnestly hoped, therefore, that the United States Government, after further consideration of the matter, may waive their objections with regard to section 25 of the proposed regulations and assent to the principle of delayed priority as provided for by that article. No. 384.] Minister Rockhill to the Secretary of State. AMERICAN LEGATION, Peking, China, August 30, 1906. SIR: I have the honor to acknowledge the receipt of your instruction, No. 159, of June 30, with regard to the rights of American merchants who applied for the registration of trade-marks during the short time that the tentative trade-mark regulations were in force. On receipt of the above dispatch I communicated immediately with the consuls in Shanghai and Tientsin, directing them to ascertain the feeling of Americans in their respective ports on this subject. and the importance they attached to rights based on such applications. The replies were naturally very vague, as the situation has never been clear to anyone. As soon as they reached me I sent my conclusions in my telegram of August 17, which I confirm, as follows: SECRETARY STATE, Washington: AUGUST 17, 5 p. m, In reference to your instructions 159, I have inquired through our consuls Tientsin and Shanghai. They say American merchants are inclined to believe they may have acquired some rights by filing under provisional regulations. Chinese foreign office note of December 22, 1904, inclosed, does not apparently affect the fact that for several days application for registration was lawful. Japanese probably filed very many more than Americans; other nationalities may have also. For reasons given, page 2, paragraph 2 of your instructions, I advise acceptance German proposal. ROCKHILL, I have the honor to refer once more to the legation's dispatch No. 1788 of January 7, 1905, and to state that, though I consider the stand taken by the American Government from the outset has been right and just, I do not think that, as far as can be judged in the prevailing confusion, American acquired rights would suffer materially if the Government were in the interests of harmony to modify its attitude and come to an agreement with Germany and the other powers. In gauging the importance of this discussion we should not lose sight of the fact that the purpose of these regulations is to prevent the manufacture and sale of spurious foreign articles by the Chinese. As a matter of fact, the Chinese do not manufacture fraudulent imitations of foreign articles, and a very simple enactment would be sufficient to avert this danger for a long time to come. As for the sale of spurious goods of foreign manufacture, redress should lie in taking action in the country of their origin or in the consular courts of those countries whose nationals import such goods and sell them to the Chinese, and with whom we have concluded by exchange of notes arrangements for this purpose. I have the honor, etc., W. W. ROCKHILL. No. 226.] The Secretary of State to Minister Rockhill. DEPARTMENT OF STATE, Washington, December 21, 1906. SIR: Referring to previous correspondence regarding the project of regulations for the protection of trade-marks in China, I inclose herewith a copy of a note from the French ambassador at this capital, stating that his Government sees no objection to the addition to Article VII of said project of a clause reading as follows: The right of priority shall extend only to such trade-marks as have been registered in a foreign country after the going into effect of the law. When the other powers shall have concurred in the addition above quoted, the German proposal may be accepted by you, whereupon efforts should be made to induce China to put the trade-mark regulations into effect. I am, etc., ELIU ROOT. [Inclosure-Translation.] The French Ambassador to the Secretary of State. EMBASSY OF THE FRENCH REPUBLIC TO THE UNITED STATES. Washington, December 15, 1906. MR. SECRETARY OF STATE: By your letter of October 15 last your excellency was pleased to inform me that the Federal Government, after an exchange of views with the cabinet of Berlin, was prepared to acquiesce in the position of the other interested powers on the project of regulations for the protection of trade-marks in China, subject to an addition to be made to Article VII of the said project. The additional clause should provide that "the right of priority shall extend only to such trade-marks as have been registered in a foreign country after the going into effect of the law." I have the honor to inform you that the Government of the Republic, which I promptly acquainted with your communication, sees no objection to the abovequoted addition, and has taken pains to advise the minister of France at Peking in that sense. Be pleased to accept, etc., JUSSERAND. |