中國商標法(一九二三)施行前後の外國企業商標保護體制 : 中日・中英商標權侵害紛爭を中心に

Abstract

Based on the stipulations of the Treaty of Commercial Relations and Navigation that was concluded between the Qing government and the governments of Great Britain, the United States, and Japan between 1902-1903, successive Chinese governments assumed the duty of protecting the trademarks of foreign firms operating in China. However, the establishment of a trademark law based on this treaty proved unexpectedly difficult. The reason for this difficulty was fact that while the Japanese government insisted that the Chinese government implement a trademark law based on the first-to-file principle that had originated in Europe, Japanese firms, which possessed imitations or forgeries of product trademarks of Western firms, planned on the other hand to have their product trademarks recognized prior to the trademarks of the Western firms. Western firms in China and the diplomatic missions of the Western countries, beginning with the British government, had pressed the Chinese government to establish a trademark law based on the their own principle of first-to-use, but when this failed, they opposed completely the implementation of the trademark law drafted by the Chinese government. However, their resistance did not last long, and the Chinese government successfully implemented its own trademark law in 1923. Then what effect did this first trademark law in the history of China have on suppressing disputes over trademark infringement that occurred between foreign firms in China and Chinese firms? This article analyzes the extant records of 12 disputes in domestic and foreign sources and provides evidence of the unanticipated results of the trademark law in suppressing the imitation of foreign trademarks by Chinese firms and reevaluates the policy of protecting foreign trademarks by the Beijing government. However, this at the same time resulted in the strengthening of reaction of Chinese firms against the Beijing government. This was because they were attempting to legitimize the production and sales of imitation products with trademarks of foreign firms under the slogans of "reviving national products" and "retrieving rights". Therefore, a trademark law was established as a diplomatic promise based on the conclusion of the treaty, but if it was observed, opposition from domestic firms could not be avoided, and the Peking government was thrown into a difficult position regarding trademark protection. Likewise, the Nanjing government, which overthrew the Beijing government, was also unable to overcome these conflicting demands.