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subsequently complained of the infringement of the patent by another Chinaman, and a complaint was made by the United States legation to the Chinese Government in behalf of the two Americans. The Tsung-li yamên, December 19, 1899, replied that China would permit them “at all the treaty ports, to carry on their business of their own free will and accord, but as to protecting them in their exclusive right and prohibiting others from making machines, as there is no treaty stipulation on the subject, the Yamên still finds no way of taking action."
Mr. Conger, min. to China, to Mr. Hay, Sec. of State, Dec. 20, 1899, For.
Rel. 1899, 178–185.
degree of suspicion upon the missionaries who engage in any sort of
ure account for their decision." By Art. II., par. 3, of the Japanese trade-marks regulations, trademarks can not be registered which are “ identical with or similar to trade-marks already registered or trade-marks used by others before the application for registration was made, and which are intended to be applied to identical goods," whether the applicant be a Japanese or a foreigner.
For. Rel. 1898, 464, 469, 471.
“ I have the honor to acknowledge the receipt of your letter of
the 26th ultimo, commending to this Department's United States leg- favorable consideration the suggestion of the Com
missioner of Patents that such steps be taken as may be necessary to effect an exchange of diplomatic notes between this Government and that of Mexico, to the end that Mexican citizens may be enabled to register their trade-marks in the United States, as contemplated by the act of Congress, approved March 3, 1881.
“ The Commissioner of Patents expresses the opinion that an exchange of diplomatic notes with Mexico this subject would seem to constitute the declaration mentioned in section 3 of the act of March 3, 1881, under which the right can be accorded to citizens of Mexico to register their trade-marks in this country.
“My predecessors, Mr. Gresham and Mr. Olney, in instructions to our minister at Athens (Foreign Relations, 1894, pp. 293–295; and Foreign Relations, 1895, pp. 759–765), took the position that a declaration signed by the minister and the Greek minister for foreign affairs, to the effect that the treaty of 1837 between the United States and Greece conferred upon the citizens of either country in the dominions of the other the same rights as respects trade-marks as such citizens may enjoy in their own, would not accomplish the end desired, but that a formal treaty was necessary.
“ I think it is plain that a simple declaration would not bind this Government to grant trade-mark privileges to Mexican citizens, but in view of the Mexican law, which the Commissioner of Patents states) allows citizens of the United States to register their trademarks in Mexico, it would appear that Mexicans can now obtain registration of their trade-marks here, under the provisions of our law of March 3, 1881.
“ Section 1 of the act of 1881 provides that:
" • Owners of trade-marks used in commerce with foreign nations ... , provided such owners shall be domiciled in the United States, or located in any foreign country ... which, by treaty, convention or law, affords similar privileges to citizens of the United States, may obtain registration of such trade-marks by complying with the following requirements.'
Section 3 of the act further provides: “ • But no alleged trade-mark shall be registered unless the same appear to be lawfully used as such by the applicant in foreign commerce, ... as mentioned above, or is within the provision of a treaty convention or declaration with a foreign power.'
“ It will be observed that the provision of section 3 is in the alternative; that in order to entitle a trade-mark to registration, it must appear:
“ 1. That it is lawfully used as such by the applicant in foreign commerce, the owner being domiciled in the United States or located in a foreign country which, by treaty, convention or by law, affords similar privileges to citizens of the United States; or
“ 2. That such trade-mark is within the provision of a treaty, convention or declaration with a foreign power.
“While registration could not be claimed by a Mexican under the second alternative, it seems to me that it could properly be claimed under the first.
“I think an exchange of notes with the Mexican Government would be entirely proper to establish the fact that under the Mexican law, citizens of the United States may obtain registration of their trade-marks. This was done with the Netherlands in 1883. (See printed pamphlet herewith.) Such an exchange of notes does not, however, in my opinion, constitute the declaration mentioned in section 3 of the act of 1881."
Mr. Hay, Sec. of State, to Sec. of Interior, Nov. 4, 1898, 232 MS. Dom.
Mr. Gresham, Sec. of State, to Sec. of Interior, Feb. 23, 1895, 200
MS. Dom. Let. 645.
Porto Rico being an organized Territory of the United States in the sense of sec. 1981, Rev. Stat., and the laws of the United States not locally inapplicable having been extended thereto, its residents are entitled to register their trade-marks in the United States under the act of Congress of March 3, 1881, 21 Stat. 502.
The Philippine Islands not being an organized Territory in the same sense, and perhaps not being embraced in the phrase “ United States " in the trade-marks act, the residents of the islands are not as such entitled to the privilege in question.
Cuba being at present governed by the United States, and the law there purporting to give to citizens of the United States trade-mark privileges“ similar ” to those given by the United States law—a condition which doubtless would be continued since it was itself but a continuation of the arrangement previously existing between the United States and Spain—the residents of the island may be considered as residents of a country with which the United States has a reciprocal arrangement and as entitled to register their trade-marks under the act of 1881.
Knox, At.-Gen., Feb, 19, 1902, 23 Op. 634.
entitled to the protection stipulated for property of all kinds " in
The provision in the convention between the United States and
Austria-Hungary of Nov. 25, 1871, Art. I., that if a Treaty questions.
trade-mark has become public property“ in the country of its origin” it shall be equally free in the other country, does not prevent the appropriation in the United States of a word that is not the subject of appropriation under the laws of Austria.
J. & P. Baltz Brewing Co. v. Kaiserbrauerei, Beck & Co., 74 Fed. Rep.
222, 20 C. C. A. 402.
It was held that the name "Hunyadi” having become public property in Hungary, it also became, under the treaty between the United States and Austria-Hungary of November 25, 1871, public property in the United States; that the court could not take notice of the law of Hungary of 1895 reinstating the exclusive right of the person who first used the word as a trade-mark; and that the name having also become public property in the United States his right to an exclusive appropriation of it was lost. It was also held that he had been guilty of laches in vindicating his claim to an exclusive right to the word, if he had any. But it was also decided that the appropriation by other persons of his bottle and label, being without justification or excuse, was an active and continuing fraud on his rights, and that the defense of laches in this particular was not maintained.
Saxlehner 1. Eisner & Mendelson Co. (1900), 179 U. S. 19.
The agreement between the United States and Brazil, Sept. 24, 1878, provides that the citizens or subjects of each contracting party shall have in the territory of the other the same rights as natives in everything relating to trade-marks. By a law of Brazil of Nov. 14, 1899, the “importation of goods made abroad which carry labels wholly or partly in Portuguese, except when imported from Portugal or when made for factories," was forbidden. The Department of State expressed the opinion that this constituted a violation of the trade-marks agreement. The Commissioner of Patents of the United States, however, afterwards said: “As I understand the Brazilian law from the correspondence, the requirement that the importation of foreign products shall not carry an inscription in the Portuguese language, unless imported from Portugal, applies to the citizens of Brazil as well as to others. This being so, of course our citizens in this particular would be on the same footing under the treaty as Brazilians.” He therefore expressed the opinion that the contention that the law violated the treaty could not be sustained. The law subsequently was amended so as to allow importations of manufactures with labels in Portuguese, with the requirement that the country of origin must be indicated.
Under the stipulation of Art. XVII. of the treaty between the United States and the German Empire of Dec. 11, 1871, that the citizens of each country shall enjoy in the other “the same protection as native citizens” in the matter of trade-marks, a German may acquire in the United States a trade-mark in a particular word, although in Germany a word alone, apart from any symbol or design, can not be so appropriated.
J. P. Baltz Brewing Co., 74 Fed. Rep. 222, 20 C. C. A. 402.
Aug. 16, 1898, for the protection of trade-marks, see For. Rel.
• For. Rel. 1900, 62.
Mr. Hill, Acting Sec. of State, to Mr. Bryan, min. to Brazil, tel., June 1, 1900, For. Rel. 1900, 56 ; Mr. Hay, Sec. of State, to Mr. Bryan, min. to Brazil, June 1, 1900, For. Rel. 1900, 57.
For. Rel. 1900, 63, 64–65.
“In accordance with instructions which I have received, I have the honor to call your excellency's attention to the following subject :
“ In a memorandum handed to the Imperial Government by the United States ambassador at Berlin October 19, 1894, a copy of which is inclosed, the wish is expressed to conclude a special agreement with the Imperial Government to the effect that American citizens be granted the benefit of certain provisions of the German patent law of April 7, 1891, which are not in themselves applicable to aliens.
“ The opinion repeatedly expressed therein, that the American patent legislation already grants to German inventors that which is asked of Germany by America, rests, in the judgment of the Imperial Government, upon a not quite correct view of the legal situation. The points to be considered in the matter were communicated to the then United States Secretary of State, Mr. J. W. Foster, in the German note of September 15, 1892. As they were mentioned in the memorandum of October 19, 1894, without a reply being made to them, the Imperial Government thinks itself called upon to refer to them again, and to add that if the three months' limitation were withdrawn from American patent documents in Germany the Americans would obtain an advantage over the Germans which the Germans do not enjoy in America.
“ The draft of an agreement for the conclusion of a patent, sample, and trade mark convention between the United States and Germany, transmitted to your excellency with the German note of November 10, 1893, which, according to the kind note of Acting Secretary of State Uhl of November 30, 1893, was handed to the proper authorities for examination and approbation, contains, in article 3, a provision which, in the opinion of the Imperial Government, is calculated to satisfy fully the wishes of the United States Government. The Imperial Government cherishes the opinion that by the speedy conclusion of a convention upon the basis of the above-mentioned draft the matter would be settled in the most satisfactory manner, and in that most conducive to the interests of both parties.
Baron Saurma, German amb., to Mr. Gresham, Sec. of State, April 3,
1895, For. Rel. 1895, I. 528. For the previous correspondence referred to in the foregoing note, see
For. Rel. 1892, 185, 186, 189, 190, 191–197, 200, 214, 217; For. Rel. 1894, 243,
“An American patent may be applied for by a foreign inventor whose invention has been patented abroad at any time during the life of his foreign patent unless his invention has been introduced into public use in the United States for more than two years prior to the application, the American patent, if granted, to expire the same time as the foreign patent.