contention so strenuously insisted upon heretofore by this Government, but it releases a citizen of the United States who, according to our view of the present public law of civilized nations, is not liable to compulsory military service in the Italian army, and is, therefore, so far as the present case is concerned, entirely satisfactory. The dispatch of the Marquis Visconte Venosta, minister of foreign affairs, is as follows: The soldier, Vittorio Gardella, to whom your excellency's esteemed note of the 19th October, 1896, makes reference, was born in 1861 in Neirone-Chiavari, of Italian father, and acquired the American citizenship in 1884-that is, after he had reached manhood. Under the circumstances he has no doubt lost his Italian citizenship by virtue of article 11, second paragraph, of the Italian civil code, but he remains nevertheless liable to military service in the Kingdom, according to the peremptory provisions of the following article 12. He was therefore regularly enlisted and sent to the service. I have the honor, however, to inform your excellency that, in view of his exceptional condition of the privileges which by the amendments which are expected to be made to the law regulating the levy applicable to persons residing abroad when enlisted, and of the interest which your excellency takes in Mr. Gardella, the royal minister of war has provided that in an exceptional way Mr. Gardella be sent on an unlimited leave in advance. I have, etc., WAYNE MACVEAGH, Mr. Olney to Mr. Mac Veagh. No. 219.] DEPARTMENT OF STATE, SIR: The Department has been gratified to learn from your No. 220, of the 11th instant, of the discharge of Vittorio Gardella, a naturalized American citizen of Italian origiu, from the military service of Italy by a grant of unlimited leave. I am, etc., RICHARD Olney. INDEMNITY TO HEIRS OF ITALIAN SUBJECTS KILLED AT WALSENBURG, COLO.' No. 129.] Mr. Olney to Baron Fava. DEPARTMENT OF STATE, EXCELLENCY: I have the honor to state, having regard to previous correspondence upon the subject, that the act of Congress approved June 8, 1896, entitled, "An act making appropriations to supply defici encies in the appropriations for the fiscal year ending June 30, 1896, and for prior years, and for other purposes," contains the following provision for the payment out of humane consideration, and without reference to the question of liability therefor To the Italian Government for full indemnity to the heirs of three of its subjects who were riotously killed, and to two others who were injured, in the State of Colorado by residents of that State, ten thousand dollars. I inclose a check of the Chief of the Bureau of Accounts and disbursing clerk of the Department of State for the sum of $10,000; also receipt in duplicate, which I shall be glad to have you sign and return to this Department. Accept, etc., RICHARD OLNEY. 1 See Foreign Relations 1895, Part II, pp. 938-956. JAPAN. RECIPROCAL PROTECTION OF PATENTS, TRADE-MARKS, AND DESIGNS. LEGATION OF THE UNITED STATES, Tokyo, Japan, September 14, 1896. (Received Oct. 6.) SIR: I have the honor to call your attention to Articles XVII and XXI, and the protocol to Article XVII, of the treaty of trade and commerce lately concluded--April 4, 1896-between Germany and Japan, relating to trade-marks and patents. Translations made at this legation of the articles referred to above are inclosed herewith. You will observe that Article XVII provides that subjects of either contracting country shall have in the territory of the other the same rights as the citizens of that territory in regard to protection for inventions, patterns, models, trade marks, etc., provided they observe the conditions imposed by the law of the land. The protocol to Article XVII provides that, in either of the contracting countries, protection with regard to inventions, patterns, models, trade-marks, etc., must be accorded to subjects of the other country as soon as the conditions imposed by the law of the land have been fulfilled. Article XXI fixes the date when the treaty shall take effect, how long it shall hold good, how it may be terminated, and provides that Article XVII of the present treaty shall take "effect from the date of the exchange of ratifications, and, unless otherwise agreed upon by the contracting parties, shall remain in effect until the other articles of the treaty lose their force." The protection accorded to German subjects under the articles cited above are reciprocal. It uppears to me that under the most-favored-nation clause of our treaty with Japan American citizens are, subject to the same terms and conditions, entitled to the same privileges and protection in regard to trade-marks, patents, etc., that the new German-Japanese treaty. secures in Japan to German subjects. The new treaty is silent in regard to the question of jurisdiction in the event of infringement of Japanese patent or trade-mark laws by German subjects, but, in the absence of express stipulations to the contrary, it must be inferred that the German consular courts in Japan will continue to exercise jurisdiction over German subjects in this regard, as well as in all other cases, both civil and criminal, until those courts are abolished under the provisions of the new treaty, which will take effect not earlier than July 17, 1899. It is true that any protection or privilege granted to a German subject under the patent or trade-mark laws of Japan could be canceled in the event of infringement of those laws by the individual, but further than this a German subject resident in Japan can be justiceable only by the German consular courts for any infringement of Japanese law. The question of jurisdiction is, however, in my opinion, of very little practical importance. It is not at all likely that any American or European will ever attempt to infringe the patent or trade-mark laws of Japan. They will come here seeking protection for their own patents and trade marks, and not to infringe upon the rights of Japan in this regard. Within the very short time that will elapse before the new treaties come into operation Japan will hardly offer sufficient inducement for foreigners who might otherwise be so disposed to infringe her patent and trade-mark laws. Owing to the disturbed state of the Japanese cabinet since the resignation of Marquis Ito, I have deemed it best to refrain, until after the reorganization of that body, from speaking to the minister for foreign affairs in regard to Japan's disposition to extend to American citizens, under the same terms and conditions, the same rights and privileges in regard to patents, trade marks, etc., that are secured to German subjects under the new German-Japanese treaty. I have no reason to believe, however, that Japan will have any unwillingness to extend these rights and privileges to American citizens, for, it appears to me, we are clearly entitled to them under the most-favored-nation clause of our existing treaty with Japan. As this question is one of very considerable importance to American citizens, I shall be glad if you will instruct me on the following points: In the event of Japan's willingness to extend to American citizens the rights and privileges referred to herein on the same terms and conditions as they have been granted to German subjects, can reciprocal rights and privileges be granted under the laws of the United States to Japanese? I assume that, in the event of Japan's notifying my Government in writing that she is prepared to extend to Americans the rights and privileges granted to Germans by treaty, she will expect in return a written assurance of some kind of reciprocal treatment of Japanese by the United States. In such event, would an exchange of notes between the two Governments be sufficient, or would a more formal agreement, in the form of a convention, be necessary? When the new cabinet is formed I shall seek an interview with His Imperial Japanese Majesty's minister for foreign affairs in order to ascertain from him the disposition of his Government in regard to granting to American citizens the rights and privileges referred to in this dispatch. I shall, however, refrain from committing my Government in any way in the matter until instructions are received from you. I have, etc., EDWIN DUN. [Inclosure 1 in No. 410.] With the exception of Article XVII, the present treaty shall take effect-not, however, before the 17th day of July, 1899-one year from the time when His Imperial Japanese Majesty's Government shall have given notice to the Government of His Majesty the Emperor of Germany and King of Prussia of its desire to put said treaty into effect. The treaty shall hold good for twelve years from the date of its taking effect. It shall be the right of either of the contracting parties, at any time after the lapse of eleven years from the date of the taking effect of this treaty, to notify the other of its intention to annul said treaty, and twelve months after such notice this treaty shall be absolutely and null and void. Article XVII of the present treaty shall take effect from the day of the exchange of ratifications, and unless otherwise agreed upon by the contracting parties, shall remain in effect until the other articles of the treaty lose their force. ARTICLE XXII. The present treaty shall be ratified, and the ratifications exchanged in Berlin as soon as possible. [Inclosure 2 in No. 410.] ARTICLE XVII. The subject of either contracting country shall have, in the territory of the other, the same rights as the citizens of that territory in regard to protection for inventions, patterns (inclusive of trade samples) and models, trade-marks and factory stamps, firms and names, provided they observe the conditions imposed by the law of the land. Protocol to Article XVII.-It has been agreed that in either of the contracting countries, protection with regard to inventions, patterns (inclusive of trade samples) and models, trade-marks and factory stamps, firms and names, must be accorded to subjects of the other country as soon as the conditions imposed by the law of the land have been fulfilled. Moreover, the contracting parties reserve the conclusion of a special treaty covering their mutual relations in regard to the protection of patents, samples, and trade-marks, and will, in good time, enter into negotiations in this regard. The Japanese Government, furthermore, declares its intention of joining the International Convention at Berne in regard to copyrights and inventions (Urheberrecht), intellectual property, before the abolition of German consular jurisdiction in Japan. No. 370.] Mr. Olney to Mr. Dun. DEPARTMENT OF STATE, Washington, November 12, 1896. SIR: I have received your No. 410, of September 14, 1896, in regard to the treaty of trade and commerce concluded April 4, 1896, between the Governments of Japan and Germany, relative to trade-marks and patents. In view of the provisions of that convention you add: It appears to me that under the most-favored-nation clause of our treaty with Japan, American citizens are, subject to the same terms and conditions, entitled to the same privileges and protection in regard to trade-marks, patents, etc., that the new German treaty secures in Japan to German subjects. The disturbed state of affairs in Japan since the resignation of Marquis Ito has prevented you from bringing the subject to the attention of the minister for foreign affairs, with a view to ascertaining the dispo sition of the Japanese Government to extend to American citizens, under the same terms and conditions, the same rights and privileges in regard to patents, trade-marks, etc., as are secured to German subjects under the new Japanese-German treaty. You say you have reason to believe that there will be no unwillingness on the part of Japan to accord these rights and privileges to our citizens who, in your judgment, are clearly entitled to them under the most-favored nation clause of our existing treaty with Japan." Hence you inquire, in expectation of Japan's willingness to concede the rights and privileges of which you speak, upon the same terms and conditions as they have been granted to German subjects, "can reciprocal rights and privileges be granted, under the laws of the United States, to Japanese?" Your dispatch has received careful consideration, and I shall now endeavor to make the subject clear as the Department understands it. So far as concerns "copyright," and the statement that the Japanese Government proposes to join the International Convention at Berne bearing upon that subject, I may observe that the act of March 3, 1891, authorizes the President, when he is satisfied that any foreign state permits to citizens of the United States the benefit of copyright on substantially the same basis as its own citizens, to issue a proclamation declaring the benefits of our copyright laws are extended to the citizens or subjects of such foreign state. This question has been formally presented to you in a circular instruction of May 7, 1891, which you have no doubt communicated to the Japanese Government, and in case Japan is in a position to give the necessary assurance, under her laws that our citizens enjoy within Japanese jurisdiction equal benefits with her own subjects, in the matter of copyright, I shall be glad to receive it and to recommend that the President issue his proclamation pursuant to our statute. But we have no such law so far as concerns trade-marks and patents, and must look elsewhere for our authority. In connection with this subject, I direct your attention to the volume of Foreign Relations, 1895 (pp. 759-765), in regard to reciprocity in trade-marks with Greece. The position of the Department is there clearly stated. It will be seen that it was unable to accept the declaration signed by your colleague at Athens, and the minister for foreign affairs, on July 9, 1894, in order to determine in a more explicit manner the text of the treaty of commerce and navigation concluded at London, between the United States and Greece of December 10-22, 1837, in all that relates to trade-marks, industrial designs, and patterns. The Department's examination of that treaty failed to satisfy it that it was susceptible of the construction the declaration placed upon it. It was accordingly thought that it amended and enlarged the treaty, and in that event necessarily required the President's ratification by and with the advice and consent of the Senate. Mr. Alexander was therefore instructed to conclude a formal convention. That proposition is still under consideration at Athens. Article IX of our treaty with Japan of March 31, 1854, contains, it is presumed, the most-favored-nation clause to which you refer. It reads as follows: It is agreed that if at any future day the Government of Japan shall grant to any other nation or nations privileges and advantages which are not herein granted to the United States and to the citizens thereof, that these same privileges and advantages shall be granted likewise to the United States and to citizens thereof, without any consultation or delay. By the treaty of July 29, 1858, such of the provisions of the treaty of 1854 as conflict with those of the former are revoked by Article XII thereof. (See treaty vol., 1776-1887, p. 1256, Art. VI.) The quoted provision would not seem to be of that class, however. But without discussing that feature of the case, I may remark that, in the Department's judgment, the provision of the treaty of 1854, to which you refer, does not mean if Japan shall grant privileges to Germany in consideration of similar privileges granted by the latter to the former, the same privileges shall be granted gratuitously to the United States. The clause "that these same privileges and advantages shall be granted likewise to the United States and to the citizens thereof, without any consultation or delay," only refers, in my opinion, to privileges granted gratuitously to a third power and not to privileges granted in consideration of concessions made by another government. |