rights lead to the suggestion that American manufacturers should give more attention to the registration of their trade-marks in European and Oriental competing countries if they desire to avoid the importation of imitations of their goods in this market.

Notwithstanding that China has no trade-mark or patent laws-although the Government has undertaken in the treaties to inaugurate such systems-the difficulty in the matter of infringements does not generally arise among the Chinese, with whom the authorities are usually prompt to deal in cases of infringement, but with certain European and Oriental manufacturers who put on the China market merchandise which it is claimed by representatives of American manufacturers violates American trade-mark and patent rights. It is difficult to deal with such cases for the reason that not infrequently the American manufacturer has neglected to register his trade-mark in the country where the spurious articles are manufactured.—From Daily Consular & Trade Reports, Oct. 30, 1913.

Germany.

Trade-Marks. Applications. Rejections.
Translation

(Continued from II P. & T. M. Rev., 360.)

List of Word Marks, the Registration of which was refused from January 1, 1913, to date, on the ground of par. I or par. 5 of the Trade-Mark Law.

Aristocratia (Span.-aristocratic), Bonaeier, Bunte Mischung, Echte Hamburger, Chic Parisien, Confidentia, Cumberland, Defiance, Deutsche Keramit Werke, Deutsche W. K. Möbel, Dicht-hält-sie, Edelgold, Edelmilch-Camembert, Ersatz für Ringelbitter, Filozaile, Gala, Goldkorn, Grafschafter Weinkellerei, GrossHamburg, Holsteiner Ideal, Hungaria Gold, Keramit, Kongo, Krian, Leuchtfeuer, Lotterie, Maismokka, Mia Bella (Ital.-my beauty); Milchmann, Neopinol, NieKaput, Puck, Pietät, Professional, Rigi, Royal Series (the); Silesiahütte, S. M. Co., Schlager (mein), Schutzmarken-Register für Bürobedarf, Papier und Schreibwaren; Standard, Standard-Cream, Staniol-und Gelatine-Schrift-und VerzierungsEnveloppe, Taberna (Span.-tavern), Tensil (tensile, Engl. and Ital.-resilient, elastic); Urkraft, Weizenblüte.-From Blatt für Patent-, Muster- und Zeichenwesen, November 26, 1913.

Japan.

Trade-Marks. Appeal from Decision. Hearing Adjourned. Caswell & Co. v. Kobayashi Kiju.

In the Osaka Appeal Court on October 15, 1913, took place the hearing on appeal of the case of Casewell & Co. v. Kobayashi Kiju (see 12 P. & T. M. Rev., 9). In the lower Court it had been held that Mr. de Haviland, agent for the plaintiffs, not having been registered under the new law, was incapable of acting for the plaintiffs in their suit brought for infringement of their mark-his power of attorney and continuous service under the old law being of no avail.

The Appeal Court reviewed both the question of law and of fact. As to the latter, evidence was given by experts that shoe "blacking" (plaintiffs') and "cream" (defendant's) are commercially the same. As to the former, Mr. de Havilland's right to act for the plaintiffs-strong evidence was given that the lower

*

Court had erred: "The new law contains no article requiring fresh registration In order to make sure of his rights Mr. de Havilland applied to the Patent Bureau for registration as representative of the trade-mark, concerning which the present case has arisen, on September 10, 1913 (the decision of lower Court was on August 8.-Ed.), but the Patent Bureau rejected his application on the ground that there was no need of any other registration than the one made on October 26, 1909-thus overruling the decision of the Court of First Instance." The Procurator in charge, Mr. Yamagughi Naosaburo, agreed with and supported the contentions of Mr. Nagashima, plaintiffs' attorney. In view of these new matters, Mr. Itami, for the defendant, asked for an adjournment, which was granted till November 7, by Judge Miyamoto Rikinosuke and his two associates.

(For fuller details, see The Japan Chronicle, October 17, 1913.)

Australian Commonwealth.

Trade-Marks Act of 1905-1912. Statutory Rules, 1913, No. 260. Provisional and Permanent Regulations.

COMMONWEALTH OF AUSTRALIA.

Department of the Attorney General,

Melbourne, 8th October, 1913.

PURSUANT to the Rules Publication Act 1903, notice is hereby given— (1) That His Excellency the Governor-General, acting with the advice of

the Federal Executive Council, was, on the 8th day of October, 1913, pleased to make Provisional Regulations under the Trade-Marks Act, 1905-1912, come into operation forthwith, which Provisional Regulations may be cited as Statutory Rules 1913, No. 260.

(2) That it is proposed, after sixty days after the publication of this notice (published in Commonwealth of Australia Gazette, Oct. 11, 1913), to make Regulations under the Trade-Marks Act, 1905-1912, and that the Provisional Regulations above mentioned are the draft of the proposed Regulations.

(3) That copies of the Provisional Regulations may be purchased at the Government Printing Office, Melbourne, at the price of One shilling and threepence.

(4) That any representations or suggestions made in writing to the Secretary, Commonwealth Attorney-General's Department, Treasuryplace, Melbourne, by any person interested will be taken into consideration before finally settling the proposed Regulations.

W. H. IRVINE,
Attorney-General.

(From Australian Official Journal of Trade-Marks, VIII, 945.)

Portugal.

Trade-Marks. Wines of Porto. Publication. Law of July 18, 1913.

Law No. 74 of July 18, 1913, of the Republic of Portugal provides for the publication of an "album, for the purpose of popularizing the marks of the

wines of Porto, registered in the Department of Industrial Property and belonging to the exporters inscribed in the Revenue District of Porto, in conformity with Art. 6o of the Regulation of Nov. 27, 1908." While intended for commercial purposes, this album is to be compiled in an artistic form, with illustrations, reproductions of marks, historical and local information, lists of foreign agents, etc. In a word, it is to be a work officially identifying these celebrated wines, of which the market is flooded with imitations, and at the same time exploiting them abroad, with the governmental statement of the genuineness of their marks. The edition is to appear in three languages-English, German and French-and is to be distributed in the countries where these languages are spoken, by consular agents, and in the Portugese colonies through commercial associations, to dealers, hotels and restaurants. The cost is to be borne by the exporters of the District of Porto, with a tax of two centavos per hectoliter of wine sent abroad. (The text of the Law appears in full in the Boletim da Propriedade Industrial, July, 1913, p. 235.)

Portugal.

Patents of Introduction. Law of July 12, 1913.

Law No. 41, published July 12, 1913, concerning patents of introduction of new industries.

In the name of the Nation, the Congress of the Republic decrees, and I promulgate, the following Law:

Art. 1o. The grant of patent of introduction of new industry, in accordance with the Decree of Sept. 30, 1892, and the Regulation of June 19, 1901, is the prerogative of the Executive Power.

Art. 2o. Applications for patents of introduction of new industry, made previous to the Republic being proclaimed, or since its proclamation, those for which the legal period has gone by, but which have not had final decision, shall be given grace, according to the terms of the legislation in force, until thirty days subsequent to the promulgation of the present law.

Art. 3o. For those applications, that so far, through failure of their completion by legislation, have not provoked any opposition by interested parties, the maximum period of thirty days for the bringing of same is to be observed.

Art. 4. The prescribed period being over, the Government shall grant the petitions if there are no oppositions which are justified as to documentary proof, or it shall pronounce its decision within eight days after the filing of the oppositions.

Art. 5o. Legislation to the contrary shall be revoked.

The Minister of Public Industry has caused this to be printed, published and made public. Signed in the Palace of the Government of the Republic, and published, July 12, 1913.

António Maria da Silva.

MANUEL DE ARRIAGA.

(Decree of the Government, No. 161, July 12, 1913.)

(Transiation from Boletim da Propriedade Industrial, July, 1913, p. 235.)

Trade-Marks.

Argentine.

Infringement. Need for a New Law.

Frequently of late protests have been raised on the part of merchants, representing foreign enterprises, that manufacturers' and trade-marks, valid in Europe, have been registered in the Republic by persons who have no right to them.

The legislation in force permits this assumption of privilege inasmuch as it recognizes for no one the use of the mark or of titles acquired abroad, making rights depend on the day and hour of presentation at the Office. This principle is a reaction against the former system; but, as generally happens with reactions, it goes too far.

Under the provisions of the old legislation, marks legally acquired abroad prevailed for all time and in every instance over those registered in the country. A merchant, settled in the Republic, requested and obtained a mark, complying with the formalities indicated in the Argentine law; and yet his right was not stable. The showing by a foreign merchant, proving that in his country there had been used with priority a mark which might be confounded with that obtained in the Republic, was sufficient for having the latter annulled.

The protest that arose from this state of affairs was the motive for fundamentally changing the law, which was inequitable in that it authorized the spoliation of the merchant, settled in the country, who, contrary to the foreigner, had complied with the mandates of the Argentine law.

But if the sanction of legislation should not authorize frauds contrary to elemental ethics. it is evident that the system of the new law should not continue in all its rigor. In effect, the law in force permits that anyone, be he merchant or not, may copy textually a mark accredited in other countries, and register and reserve it, without making use of it until the opportunity arrives to offer it for sale to the actual proprietor. This is a monstrous situation, which no legislation should authorize, which ours does authorize, and which is condemned by the most eminent publicists on this subject.

The situation that has been produced, and which sounds a discordant note in the principles dominating in Argentine legislation, should not aim towards the complete reestablishment of the former system, because one error is not corrected by another.

The jurisprudence of some European States furnishes us with the principle for resolving these questions. In a case that was presented referring to the registry of a mark celebrated throughout the world, the Courts of Italy took, as a starting point for the solution, the knowledge or ignorance, by those who registered the mark, of the prior registry and use of same abroad. The bad faith, the intention to deceive, having been proven, the mark was annulled and restored to those whom equity designated as its true proprietors. This principle, which is that which justice demands, ought to inspire Argentine legislation. Among ourselves there is a precedent in this direction, inasmuch as Doctor Pellegrini, a national senator, presented a project to lessen the consequences of the law now in force. On the basis of this initiative, the Minister of Agriculture should prepare something in this respect, because it is not right that the Argentne law should protect shameful frauds. (Translated from La Prensa, Buenos Ayres, Sept. 27, 1913.)

Great Britain.

Trade-Marks. Registration. Surnames. Trade-Marks Act of 1905, Sec. 9,

An important decision was rendered by the Chancery Division, High Court of Justice, Dec. 6 and 7, 1911 and Feb. 19, 1912, in the matter of applications of R. J. Lea Ld. and William McEwan & Co. Ld. to register as trade-marks the words "Boardman's" and "McEwan's," respectively, as distinctive designations of manufactured tobaccos and beer. The respective applicants having applied to the Board of Trade for Orders under paragraph 5 of Section 9 of the Trade-Marks Act 1905, the Board referred the matter to the Court. Evidence was adduced to show the great repute of the goods manufactured by the respective Applicants, and the names by which they were asked for.

The name "Boardman's," as applied to a brand of smoking tobacco, known as "Boardman's Mixture," had been, according to the evidence, recognized both in the tobacco trade and by consumers as belonging to a particular combination of tobaccos, manufactured and sold by R. J. Lea Ld., since 1868, had acquired a very considerable reputation, and a label bearing the name Boardman's had been registered as a Trade-Mark in 1887. Similar facts were adduced as to the word "McEwan's," as applied to beer, having been used since 1865, a label bearing the word McEwan's having been registered in 1880, and being generally and favorably known throughout the United Kingdom.

Section 9, paragraph 5 of the Trade-Marks Act, under the provisions of which the applications were made, provides that a Trade-Mark must consist of (5) "any other distinctive mark, but a name, signature, or word or words, other than such as fall within the descriptions in the above paragraphs (of the same Act) (1), (2), (3) and (4) shall not, except by the Order of the Board of Trade or the Court, be deemed a distinctive mark.” From the terms of this provision, it is evident that the cases under consideration raise an important general principle -whether a mere surname can be registered. The "other distinctive mark" referred to being, by Section 3, defined to include "any device, brand, heading, label, ticket, name, signature, word, letter, numeral, or any combination thereof," and "For the purposes of this Section (9) 'distinctive' shall mean adapted to distinguish the goods of the proprietor of the Trade-Mark from those of other persons."

In his decision, Mr. Justice Joyce says: "It appears to me that the criterion of whether a proposed Trade-Mark, not in actual use, is distinctive for the purpose of paragraph (5) is simply whether it can be adapted to distinguish the goods of the proprietor of the Trade-Mark from those of other persons." Taking up the two words at issue, he points out that neither, although registered, constituted the whole of its mark, and under the circumstances it is immaterial to what extent the user has made the name distinctive. It is something which can be and is done in the case of other products, where the name of the maker or merchant acquires a celebrity. But, an ordinary surname is not adapted, to distinguish the goods of all the persons, taken collectively, who bear that surname, as the case if the full name or that of a manufacturing company be given. Admitting that the name of every company, individual or firm, not having at the date of the application any serious competitor of the same identical name, would be registrable under paragraph (5), without such name being represented in a special or particular manner, would produce a most extraordinary result. "It is