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ultimo, was indicted and forwarded just previous to the receipt of No. 477 of August 28 last. The note of the German Government referred to in that dispatch has since been received and acknowledged.
For your information and file I inclose a copy of Baron von Ketteler's note of the 15th ultimo, setting forth the reasons that prompt his Government in not making the desired publication provided by section 2, paragraph 2, of the new German patent law of April 7, 1891, in the Imperial Law Journal, in order that protection may be extended to American inventors in Germany, especially in view of the liberality of our patent laws.
In sending a copy of this note to the Secretary of the Interior for the information of the Commissioner of Patents, comment was made as 'follows:
The Department fails to see the conclusiveness of the German reasoning in this case for its refusal to publish the notice repeatedly requested by this Government through its minister at Berlin.
There is, however, an intimation in Baron Ketteler's note that a reply to the counter proposition of the United States in the matter of the pending negotiation for the protection of patents, samples, and trade-marks may be expected at an early dato. The conclusion of such an arrangement may provido a remedy for this unequal and unsatisfactory situation in the absence of a public statute such as was presented at the last session of Congress.
Baron Ketteler's note was simply acknowledged by subject.
This action of the German Government necessarily estops you from carrying out the the direction in instruction No. 465, unless that Government shall voluntarily renew the subject. But it is not to be expected, after the assembling of Congress in December next, unless the conclusion of the proposed convention with Germany alters the situation, that this Government will submit to its citizens being thus denied their clear right in Germany which the laws of that country grant as a reciprocity for the more liberal privileges extended to foreigners by our statute. I am, etc.,
ALVEY A. ADEE,
Mr. Foster to Mr. Phelps.
DEPARTMENT OF STATE,
Washington, November 18, 1892. Sir: In 1884 the Government of Her Britannic Majesty put forward a proposal for an international understanding looking to the eventual establishment of a general system whereby the supply of liquors, arms and explosives to the native Pacific Islanders might be effectively pre. vented. It was at once favorably welcomed, in principle, by this Government, subject to further information as to the scope and form of the proposed agreement.
The subsequent course of the negotiation is not necessary to be herein recounted, nor commented upon further than to observe that, in the absence of a formulated plan of agreement and in the confusion engendered in the course of the comparison of views among the various states, the attitude of the United States in this regard has been seriously misunderstood, and even regarded as obstructive to a gen. eral accord.
The recent submission of a draft agreement by Her Britannic Majesty's Government has, however, afforded this Government a gratifying opportunity to set itself right on the record and confirm by favorable action now upon the detailed plan the acquiescence in the general principle which it cheerfully announced in August, 1884.
In the supposition that the British proposal may be under consideration by the Government of Germany, and to enable you to respond to any friendly inquiries which may be put to you respecting the views of the United States upon the subject, I inclose, for your information, copies of a note addressed by me to Her Britannic Majesty's chargé. d'affaires on the 11th ultimo, expressing concurrence in the proposed plan, with some necessary minor reservations. I am, sir, your obedient servant,
JOHN W. FOSTER. Same, mutatis mutandis, to the principal powers.
Mr. Phelps to Mr. Foster.
LEGATION OF THE UNITED STATES,
Berlin, November 29, 1892. (Received December 16.) SIR: Referring to the case of John Haberacker, I have the honor to acknowledge the receipt of the Department's instruction No. 381, of March 19 last, the contents of which were embodied by me in a note (F. O. No. 321) to the foreign office on April 12.
I am to-day informed by the foreign office, in a note dated November 28, 1892, a copy and translation of which are herewith inclosed, that, as this case has practically been settled by the desertion of the said Haberacker from the Bavarian army, the Imperial Government prefers not to continue the discussion of the question which it involves. I have, etc.,
WM. WALTER PHELPS.
(Inclosuro in No. 510.- Translation.]
Berlin, Norember 28, 1892. Referring to the note of April 12, last (F. O., No. 321) the undersigned has tho honor to inform the envoy extraordinary and minister plenipotentiary of the United States of America, Mr. William Walter Phelps, that, according to information received from the Royal Bavarian Government, John Haberacker deserted on March 31, 1891, and has not as yet been captured.
As thé affair has actually been settled hereby, the undersigned assumes that he may refrain from a further discussion of the questions which have arisen, but begs to remark that the Royal Bavarian Government, after renewed investigation, still maintains, as heretofore, the entire correctness of the views which have been set forth in the undersigned's note of December 1 last. The undersigned avails, etc.,
CORRESPONDENCE WITH THE GERMAN LEGATION AT
Mr. Alfons Mumm von Schwarzenstein to Mr. Blaine.
IMPERIAL GERMAN LEGATION, Washington, November 3, 1891. (Received November 5.) Mr. SECRETARY OF STATE: The envoy of the United States at Berlin proposed, by a note bearing date of April 22, 1891, in connection with the recently introduced reform of German patent legislation, an arrangement between the Empire and the United States of America for the reciprocal protection of patents.
Presuming that this proposition, although it expressly mentioned patents for inventions only, was not, and could not have been, designed to exclude other industrial rights from being regulated by treaty, the Imperial Government welcomes it with satisfaction.
The Imperial Government is consequently prepared, in compliance with the suggestiou of the Government of the United States of America, to conclude an arrangement with it for the reciprocal protection of patents, samples, and trade marks, for which arrangement the princi. ples of the union might, in the opinion of the Imperial Government, serve as a model, so far as this is allowed by the legal institutions and economical interests in the territories of both parties.
I have the honor to inclose six copies of the proposals made by the Imperial Government for the conclusion of an arrangement, together with a few explanatory remarks, and I would at the same time express the hope that these proposals may be taken as a basis for subsequent negotiations.
In case the United States Government may desire to familiarize itself with the German laws bearing upon this matter, I have the honor, in each additional inclosure, to transmit a copy of the law for the protection of trade-marks, dated November 30, 1874; a copy of the law concerning the rights of originators in patterns and models, dated January 11, 1876; a copy of the patent law of April 7, 1891; and, finally, a copy of the law relative to the protection of utility patterns, dated June 1, 1891.
I have the honor to request that I may, as speedily as practicable, be acquainted with the views of the Government of the United States of America as regards these propositions, and I avail myself of this occasion to offer you, Mr. Secretary of State, a renewed assurance of my most distinguished consideration.
A. V. MUMM. Hon. JAMES G. BLAINE,
Secretary of State of the United States, Washington.
(Inclosure 1.- Translation.) Proposed arrangement between Germany and the United States of America for the Reciprocal Protection of patents, patterns, and trade-marks.
ARTICLE 1. The subjects or citizens of cach of the contracting parties shall enjoy the same rights in the territory of the other party that are there enjoyed by its own subjects or citizens as regards the protection of inventions, patterns, and models, and of trademarks, firms, and names.
Other porsons whose residence or principal establishment is in the territory of the contracting parties are considered, by tais arrangement, as being on the same footing with the subjects or citizens of the said parties.
If notice is given of an invention, pattern, model, or trade-mark in the territory of one of the contracting parties with a view to the obtainment of protection, and if such notice is also given, within the time designated below, in the territory of the other contracting party, then
(a) The latter notice must precede all notices that bave been given in the territory of the other party subsequently to the time when the former notice was given.
(b) The object of the former notice shall not be deprived of its recency in the territory of the other party by circumstances arising subsequently to the time when the said notico was given.
The time fixed is six months. In the case of patterus and models, and also of trade-marks, it begins at the time when the first notice is given, and in that of inventions it begins at the time when the patent is granted.
The importation of goods manufacturod in the territory of one party, on the ground of an invention of a pattern or model, into the territory of the other party, shall involve no unfavorable consequences as regards the protection of the pattern or model in the territory of the latter.
ARTICLE 5. The owner of a trade-mark that has been registered in the territory of one of tho parties can not be prohibited from registering the same in the territory of the other party on the ground that the external form of the mark does not ineet the requirements of the laws.
For trade-marks that are generally considered, in the territory of one party, as distinguishing the goods of a particular association of mannfacturers in that territory, or of a particular district or locality belonging to that territory, the subjects or citizens of the other party can not obtain protection. The same is the case as rogards coats of arms and other signs or emblems that are reognized in the territory of the other party as appertaining to the State, a community, or any public association
Each of the contracting parties shall adopt measures to prevent the sale and ho offering for sale of goods that are designated incorrectly, and with intent to deceive, as coming from a locality situated in the territory of the other contracting party.
EXPLANATORY REMARKS. The main principle laid down in article 1, which places the subjects or citizens of both contracting parties on the same footing in respect to the acquisition and assertion of industrial rights in each of the two countries, correspond to article 2 of the union treaty of March 20, 1883. For the obtainment and exercise of these rights the laws of that country whose protection is sought are, of course, to be complied with, in so far as the following articles do not involve an exception.
In the wording of article 2 the resolutions of the Madrid Conference concerning the “assimilation of foreigners” have been borne in mind. As the principal manufac. turing countries belonging to the union are not willing to allow the subjects or citizens of other countries to be placed on the same footing (with their own subjects or citizens), unless they reside in a country belonging to the union, or unless their principal industrial establishment is in such a country, the countries that do not befong to the union will be compelled, for the present, to adopt this restriction, in order to prevent the situation of their own subjects or citizens from being rendered less favorable than that of the subjects or citizens of the union countries.
In the subsequent articles those persons who are benefited by the stipulations of the treaty, according to articles 1 and 2, are not again designated. It is understood from the contents of the latter article that the privileges proposed in articles 3, 4, and 5 are not to be granted to the subjects or citizens of third States who are not placed by article 2 on the same footing with the subjects or citizens of the contracting parties.
In Article 3 the principle laid down in Article 4 of the treaty concluded by the union is formulated in a manner that will probably be found to harmonize with the form of the protective arrangements in Germany and the United States.
Under the head of patterns and models are to be understood all articles that are to be considered as samples in matters either of taste or utility. The laws of the two countries differ, it is true, in that while America does not, Germany does recognize a previous material examination in this line; the length of the time fixed for securing rights of priority will, however, in all probability, meet the interest of America also.
As to inventions, properly so called, no advantages would accrue to persons announcing them in the States which make the issuance of a patent dependent upon an official examination as to whether the distinguishing characteristics of an invention are present, if the time fixed for securing the right of priority should begin at the time of giving notice of the invention. The United States of America have already become convinced of this, and at the Madrid conference they laid stress upon the fact that the union treaty, in its present form, possessed no value so far as their territory was concerned. The two other States of the union which do not allow patents to be issued until an examination has taken place, viz, Sweden and Norway, have endeavored to remedy the difficulty by considering-in virtue of their domestic laws-the time when the patent is granted as the beginning of the period fixed by the union treaty.
A special stipulation providing that a [the] notice, on the ground of which the privilege is rendered valid, shall meet the formal requirements of the country in which it is given, does not appear to be necessary. The party seeking protection will, on subsequently giving notice in the other country, have to prove, by the presentation of official certificates, that these requirements have been complied with. On the other hand, as to the material requirements concerning the notice, they are to be judged exclusively according to the laws of the country in which the grant of the right is sought.
The effects of the privilege are circumscribed in the same way as in Article 4 of the union treaty.
The proposition made in Article 4 contains a statement of the principles laid down in Article 5 of the union treaty, which are contradictory, and havo, consequently, not been uniformly carried out by the individual States of the union.
Article 5 reproduces the principle touching the reciprocal recognition of presumptions for the registration of trade-marks contained in Article 6 of the union treaty. The wording of the article has been changed from that of Article 6 of that treaty, so that it may appear with certainty that a privilege in itself is to be granted only as regards the external condition of the mark (form, composition, etc.), while, with respect to the other presumptions relative to registration, the laws of the country in which registration is applied for are to be obeyed. That the treaty of March 20, 1883, is the outcome of tho same views, appears from the final protocol in the part referring to Article 6.
The main object of Article 6 is to reconcile the conflicting interests of individual manufacturers and of large associations connected by similar industrial interests.
As to Article 7, the resolutions adopted by the Madrid conference concerning the prevention of impropor designations of goods are of so comprehensive a character, and for that very reason so little circumscribed, that there appears to be considerable room for doubt whether they will be efficiently and uniformly enforced even in those States of the union in which they are ratified. To this must be added that several States of the union have, from the very ontset, been strenuously opposed to the resolutions. Yet, even in a material point of view, it appears to be a very hazardous proceeding to hamper and disturb trade and business relations by regulations of general application, concerning the scope of which even an approximately correct opinion can not be formed in advance. The effect of such provisions goes far beyond the object had in view, viz, the prevention of dishonest speculation.
The draft occupies essentially the same ground as the union treaty of March 20, 1883, and secks, by a clear provision, which can easily be carried out, to prepare the way for the abolition of prevailing abuses. Article 7 prohibits all persons from mentioning, with intent to deceive, any locality situated in the territory of the other party as the place of origin. It is not intended to exclude hereby such designations from which it is merely to be inferred that the goods are made by the same manufacturing process, and that they possess the same qualities as goods manufactured in the foreign locality. It is not advisable to regulate, in the treaty itself, the way and manner in which the prohibitory provision of each country is to be executed (penal provisions, prohibition to import, seizure), especially since the union treaty and the Madrid resolutions allow freedom of action in this respoct to the individual countries.