1897, have not been altered since promulgation in 1888. Prior to the ratification of the late treaty between Germany and Japan and the negotiations of patent and trade-mark conventions between Japan and other powers, the laws concern themselves with the applications for the registration of trade-marks of Japanese subjects alone. In the contemplation of the law the rights of foreigners were in no way involved. A foreigner could not secure the registration of his trademarks, nor could he prevent their imitation. Foreign trade-marks had no existence except for one purpose, i. e., that of proving that the Japanese applicant for registration for the trade-mark was not the owner of a novel mark. It will be readily seen then that there was no means by which the imitations of foreign marks could be suppressed, and naturally where profit offered the Japanese did not hesitate to manufacture and put on sale imitations of many of the well-known articles of trade imported from foreign countries, with the result that some of the imitating manufacturers here have become established in a paying business. It can not be contended, I believe, that the patent and trade-mark convention was intended to be retroactive in effect; that the Japanese imitator who has acquired a paying business while not infringing the rights of others-for no rights in industrial property except those of the Japanese were recognized by the Governmentcould be deprived of his property upon the conclusion of an agreement between Japan and a foreign power, that from and after a certain date the contracting countries would mutually extend to the citizens or subjects of the other all rights enjoyed by their own subjects in regard to trade-marks. The rights of Americans to secure protection for their trade-marks commenced on the date of the exchange of ratifications of the patent and trade-mark convention. From that date they enjoyed all rights belonging to Japanese subjects. If a mark is novel and its ownership bona fide it is entitled to registration. If it has been used by others in Japan prior to the date of the application it is no longer novel and is not entitled to registration. If the patent bureau has been consistent in its rulings these have been all the rights enjoyed by Japanese subjects hitherto and prior to 1897. To sustain its position the patent bureau claims that it has invariably refused the registration of the application of a Japanese when it has learned that the mark is not novel and that the ownership is not bona fide. A case in point is that mentioned by Messrs. J. Curnow & Co., of Yokohama, in their letter to the New York Condensed Milk Company-inclosed with the Department's instructions-from which I quote: "For many years a brand of milk known as Eagle' was manufactured and sold in Japan, and applications had been made to register falsely, but all applications like the one shown for years had been refused." If the New York Condensed Milk Company finds that its "Eagle Brand" is being counterfeited, and this fact is known to the patent bureau, I doubt if an application for registration would be successful. It would, I fear, meet the same fate as have many others made by foreigners for marks that have been imitated prior to the trade-mark conventions between Japan and other countries. It may be, however, that another application properly made will result in a registration of the mark, and consequently I should not feel authorized to attempt to secure a suppression of the imitated article on account of sanitary reasons until I shall have learned definitely that there is no other means of protecting the American article. I have, etc., A. E. BUCK. [Inclosure 1 in No. 228.] Mr. Mitsuhashi to Mr. Herod. FOREIGN OFFICE, December 8, 1898. DEAR Mr. HEROD: In reply to your note of the 7th ultimo, on the subject of the refusal on the part of the patent bureau to register the trade-mark of the New York Condensed Milk Company, I beg to inform you that I have now received an answer from the proper authorities to whom the matter was referred, to the effect that the patent bureau has received no application for registration of trade-marks from the said company except one for that of the "Gold Seal Brand," which was duly registered; and having no other application for registration from the said company, there has naturally been no refusal at aid on the part of that bureau. But, they add, in view of the provision mentioned in paragraph 3 of the second article of the trade-mark regulations, they can not but refuse the registration of such trade-marks as are identical with or similar to those already used by others in Japan before the application for registration was made, if such case should happen, no matter whether the applicant may be a Japanese or a foreigner. Yours, very truly, [Inclosure 2 in No. 228.] N. MITSUHASHI. Mr. Herod to Mr. Mitsuhashi. UNITED STATES LEGATION, DEAR Mr. MITSUHASHI: Referring to the conversation I had with. you a few days ago upon the subject of the refusal of the patent bureau to register the trade-mark of the New York Condensed Milk Company, I beg to inclose herewith for the consideration of the department of foreign affairs a copy of an instruction upon the subject received by the minister from the Department of State, and to request that I may be informed as to the intentions of the Imperial Government in regard to proposing to the Diet additional legislation to relieve the hardships which the present rulings of the patent bureau entail upon the bona fide owners of foreign trade-marks which their goods carry to all parts of the world. Particular attention should be given to that side of the present case that touches upon the health of the users of condensed milk. Were the imitations of the established brands good milks, there would be no necessity to force their sale under false pretenses; they would sell on their merits. Very truly, yours, JOSEPH R. HEROD. [Inclosure 3 in No. 228.] Mr. Herod to the Director of the Patent Bureau. UNITED STATES LEGATION, Tokyo, November 28, 1898. DEAR MR. YANAGIYA: With reference to the conversation I had with you on Saturday regarding the trade-mark of the New York Condensed Milk Company, I send you herewith one of the papers in the case setting out that the application for registration is numbered 12092, and was presented to your department by one S. Nukiyama. Kindly return the paper when you have finished. Sincerely, yours, JOSEPH R. HEROD. [Inclosure 4 in No. 228.] NOTES OF DIRECTOR OF THE PATENT BUREAU. Nukiyama, agent for Maurice Russell, a British subject. Trade-mark, "Eagle Brand." Application dated May 4, 1898. Preliminary rejection of application, June 25, 1898. No further steps were taken by parties interested, so that the rejection was made final on August 26, 1898. The "Swiss Milk" trade-mark is registered in the name of Maurice Russell as his own property, as proved by documents in my office. KOREA. JAPANESE-RUSSIAN CONVENTION CONCERNING KOREA. No. 109. Diplomatic.] Mr. Allen to Mr. Day. LEGATION OF THE UNITED STATES, SIR: I have the honor to transmit herewith an extract from the Seoul Independent of yesterday's date, giving a translation of the new convention concluded between Japan and Russia on April 25, 1898. I have, etc., HORACE N. ALLEN. [Inclosure 1 with Mr. Allen's No. 109.] [The Independent, Tuesday, May 24, 1898.] THE NEW RUSSO-JAPANESE CONVENTION. Published in the Official Gazette of the 10th of May, as follows: Convention. In accordance with Article IV, of the convention signed at Moscow on June 9, 1895, Baron Nishi, minister of state for foreign affairs of His Majesty the Emperor of Japan, and Baron Rosen, envoy extraordinary and minister plenipotentiary of His Majesty the Emperor of Russia, have each been empowered and enter into the following agreement: 1. The Governments of Japan and Russia both recognize the national rights and complete independence of Korea, and agree to make no direct interference in the internal affairs of that country by either of the two Governments. 2. In order to avoid misunderstanding in the future both Governments agree that in case Korea asks either Japan or Russia for advice and assistance, the two Governments will take no steps whatever by way of appointing military instructors or financial advisers, unless negotiations to that effect have been opened and settled beforehand. 3. The Russian Government recognizes that undertakings pertaining to the commerce and industry of Japan are greatly developed in Korea, and that there are a large number of Japanese residents in that country, and therefore it will in no way obstruct the commercial and industrial interests existing between Japan and Korea. Two copies of the above done at Tokyo on 25th of April, 1898. RULES FOR COUNCIL OF STATE. Mr. Allen to Mr. Day. NISHI. No. 118. Diplomatic.] LEGATION OF THE UNITED STATES, SIR: I have the honor to hand you inclosed an extract from the Seoul Independent of the 25th instant, giving a translation of a new set of rules for the council of state of Korea. This council of state is assuming more and more importance as the body to whom all important questions must be submitted for final decision. This argues well for Korea, as it relieved His Majesty of the arduous task of deciding all questions himself, and brings into each case the knowledge and wisdom of a number of the most prominent men in the country. I have, etc., [Inclosure 1 in No. 118.] HORACE N. ALLEN. REGULATIONS FOR THE COUNCIL OF STATE. Edict No. 18 publishes a new set of regulations for the council of state. We append a literal translation of the same, as follows: His Majesty the Emperor, who controls and directs all things, has established the council of state. I. The members of the council shall be a president (premier), a vice-president, the ministers of departments, five councillors, and a secretary. 1. The president must be a chik im of first honorary rank. The councillors must be a chik-im, while the ministers of departments are ex officio councillors. The secretary must also be a chik-im above the third honorary rank. 2. In the absence of the premier the vice-president shall preside over the council; but when both are absent one of the councillors shall act, under imperial sanction, as the president. 3. When a member neglects his duties the council shall report the case to His Majesty. II. Meetings: 1. His Majesty, if so pleased, may attend the meetings in person, or command the Crown Prince to act as proxy. 2. The members alone of the council shall have the right to vote. 3. The premier shall open and close the meetings. 4. The council shall take into consideration the framing of new laws and regulations; the abolition or amendment or interpretation of the existing laws, etc.; the declaration of war or peace and negotiation of treaties with foreign powers; the restoration of order in case of domestic trouble; the construction and extension of telegraphs and railroads and the establishment of mining industries; the estimates and balance sheets of annual revenue and expenditure; the ways and means for extraordinary expenses; the imposition and abolition of various taxes; the amendment of the existing schedule of salaries; the payment of indemnity for private lands and forests appropriated by the Government for public enterprises; the discussion of a subject laid before the council by order of His Majesty; the promulgation of all laws and regulations approved by His Majesty. All these measures require the imperial sanction for validity. Nothing shall be done in the Government without first being submitted to His Majesty for approval. 5. If a councillor has an important matter he must either hand the resolution to the secretary or send it directly to the council. 6. The premier shall distribute among the members the copies of a resolution to be considered at least a week before the meeting. If necessary, meetings shall be held three times a week. 7. Two-thirds of the members shall form a quorum. 8. In the absence of the ministers of departments they may be represented by their respective vice-ministers, who shall, however, have no power to vote. When the secretary is absent one of the youngest councillors shall discharge his functions pro tem. 9. The minister of a department must be present when matters affecting his particular department are under discussion. If need be, the vice-minister or a chief of a bureau in the department may attend the meeting and express his views on the subject. 10. When a minister is unable to be present at the consideration of a topic affecting his department he shall inform the premier of the fact in due time, so that the topic may be postponed to next meeting. However, in case the minister is compelled to be absent in the next meeting, the council may debate on the question without farther delay. 11. Nobody shall be admitted to the meetings who has no business therein. 12. The premier himself shall rise and read aloud the resolutions which have received imperial sanction and the questions which have been referred to the council by His Majesty. 13. The secretary shall rise and read aloud the proposals introduced by councillors. While reading no objections or debates shall be allowed. 14. After a bill has been read the mover of the bill shall state his reasons for its introduction. 15. Any member may demand, for information, the second reading and explanation of a paper. |