(c) In case of objects which are applied for in Germany as models of utility (Gebrauchmuster) and in Italy as patentable inventions, at the moment of the filing of the first application, if the latter is filed in Germany; at the moment of the grant of the patent on the first application if the latter is filed in Italy.

The day of filing or of the grant is not included in the delay of priority.

The day on which notice is given of the decision concerning the] definite grant of the patent is considered the date of the grant.

In the convention with Switzerland the last paragraph has been slightly modified in view of the fact that in Switzerland the patentee does not receive, as in Germany, an official notification concerning the grant of the patent.

The uncertainty as to the meaning of article 4 of the convention with Italy, so far as it concerns the beginning of the delay of priority in case of patents for inventions, is explained in the convention with Switzerland by inserting in the final protocol the following statement, from which it appears that the right of priority begins at the date of the filing of the application and terminates three months after the date of the above-mentioned declaration:

In construing paragraph 1 it is to be understood that an application may be made in the territory of the other party with the effect provided for in article 3 before the moment of the grant of the patent on the first application, on condition that the patent is thereafter actually granted.

In these conventions with Germany the right of priority, so far as concerns applications for patent, is much longer than that established by article 4 of the International Convention of 1883, especially as to applications filed in Germany. In that country the application for patent is followed by a preliminary examination of indeterminate length, after which the application is open for two months for opposition, which is in its turn followed by a procedure more or less long if opposition is made. It will be understood that the greater part of a year is consumed between the filing of the application and the notice to the interested party that his patent may be granted.

The following provision, one of the most important of the conventions with Italy and Switzerland, is not found in the convention with Austria. It concerns the arrangement by which the contracting States avoid, in the interest of their several applicants, the forfeiture for nonworking. The following is this provision as it appears in the convention with Italy:

ART. 5. The prejudices which, under the laws of the contracting parties, result from the fact that the invention has not been worked or the design or model has not been reproduced within a certain period shall not have effect if working or reproduction takes place in the territory of the other contracting party.

In consequence, the importation into the territory of one of the contracting parties of a product manufactured in the territory of the other party shall not cause in the other the forfeiture of the protection accorded by law to said product as an invention, design, or model.

In the convention with Switzerland this second paragraph appears in the following form:

The importation into the territory of one of the contracting parties of a product manufactured in the territory of the other shall not cause, in the other, any prejudice to the legal protection based on an invention, a design, or model, or a trade-mark.

In spite of a slight difference of form, this provision is identical in its effects with that of the convention with Italy. It is to be noted that it does not annul the cause of forfeiture established by the Swiss law (art. 9 [4]) in case the object patented is imported from abroad and

at the same time the owner of the patent refuses a demand for license in Switzerland on equitable terms. This results from the following statement inserted in the final protocol:

The prejudices which, under the laws of the contracting parties, result from the refusal to grant licenses are not avoided by the provisions of article 5.

The suppression of forfeiture for nonworking is a great advance on the present condition of affairs. This has always been regarded as a result to be secured some time; but it has not been thought possible that at this date there would be found three States disposed to make this reciprocal concession, nor above all that the initiative would be taken by a country not belonging to the International Union.

In the matter of trade-marks these two conventions have an identical provision, which is equivalent to those in force in the Union on the same subject, but more concisely put. This is as follows:

ART. 6. Registration of a trade-mark registered in one of the contracting parties can not be refused to the owner of the mark in the territory of the other party, for the reason that the mark does not satisfy the requirements in force in the latter in so far as concerns the composition and configuration of the mark.

The convention with Italy contains also the following provision, which is not found in the convention with Switzerland:

ART. 7. Trade-marks which belong to the public in the country of origin can not be made the subject of an exclusive right in the territory of the other party.

The convention with Italy does not contain any provision concerning the suppression of false indications of origin. That with Switzer land, on the contrary, regulates this matter by the following article:

ART. 8. Each of the contracting parties shall enact, unless such provisions are already in force, provisions against the sale and the placing on sale of products which, falsely and for the purpose of fraud, are marked as products of a locality or district situated in the territory of one of the contracting parties.

SECTION 5.

CONVENTION BETWEEN SWITZERLAND AND RUSSIA CONCERNING THE RECIPROCAL PROTECTION OF TRADE-MARKS.

[May 1-April 19, 1899.]

ARTICLE 1. The citizens and subjects of the two high contracting parties shall enjoy in the States of the other the same protection as the citizens in all that which concerns trade-mark property, under the condition of fulfilling the formalities prescribed on this subject by the respective laws of the two States.

In each case it is permitted, in Switzerland to Russian subjects and in Russia to Swiss citizens, to lawfully register their marks, in the form in which they have been admitted in the country of origin; provided, that they are not contrary to morals or to public order.

ART. 2. The registration in Switzerland of a Russian mark and in Russia of a Swiss mark can be refused according to the provisions of the legislation of the respective countries if the mark is not sufficiently distinguished from another mark previously registered.

Citizens and subjects of the two States can not enjoy in the other the protection of their marks to a larger extent nor for a longer period than they enjoy in their own country.

ART. 3. The deposit of marks shall take place in Switzerland at the federal office of intellectual property at Berne, and in Russia at the department of commerce and of manufacture at St. Petersburg.

The papers of the application should be written or translated into the French, German, or Italian language for Switzerland, and into the Russian language for Russia.

ART. 4. The present convention shall be ratified and the ratifications exchanged at Berne as soon as possible.

This convention shall enter into force from the date of the exchange of ratifications, and shall remain in force until the expiration of one year from the date when the denunciation shall have been made by one of the contracting parties.

In faith of which the respective plenipotentiaries have signed the present convention and affixed their seals thereto. Done in duplicate the May 1-April 19, 1899.

BRENNER.

A. DE YONINE.

[L. S. L. S. NOTE.-The above convention was approved by the federal chamber under date of June 17-24, 1899. The exchange of ratifications took place at Berne July 17, 1899.

CHAPTER XII.

EXTRACTS FROM THE REPORT, DATED MARCH 16TH, 1888, OF THE DEPARTMENTAL COMMITTEE APPOINTED BY THE BOARD OF TRADE ON FEBRUARY 24TH, 1887, "TO INQUIRE INTO THE DUTIES, ORGANIZATION, AND ARRANGEMENTS OF THE PATENT OFFICE UNDER THE PATENTS, DESIGNS, AND TRADE-MARKS ACT, 1883 (46 AND 47 VICT., C. 57), SO FAR AS RELATES TO TRADE-MARKS AND DESIGNS."

REPORT.

The complaints which have been made to us of the working of the act of 1883 and the suggestions which have been submitted of amendments in the law and its administration have had reference both to the registration of trade-marks and designs. We propose to deal with these matters separately, directing attention first to the subject of trade-marks.

I.-TRADE-MARKS.

1. We propose first to consider the suggestions which have been made for improvements of procedure in relation to the registration of trade-marks.

15. We have given very careful consideration to the evidence which has been laid before us by those interested in the trade of Lancashire. The number of marks registered in classes 23, 24, and 25, which are commonly described as the cotton classes, is very large, and the administration of the act in relation to these classes is of great importance to the trade. There can be no doubt that the working of the trade-marks act has not given satisfaction in Lancashire. Even if at times there may have been a disposition to expect too much, we think there have been substantial grounds for the dissatisfaction which has prevailed. The great bulk of the goods manufactured in Lancashire in respect of which trade-marks are used is exported to other countries, and there can be no doubt that these marks fulfill important functions in the trade between Lancashire and India and other countries. One chief complaint has been that the usages of the trade and the character of the markets where the marks are intended to serve their purpose have not been sufficiently kept in view by the patent office. By section 72, subsection 2, the comptroller is directed not to register, with respect to the same description of goods, a trade-mark so nearly resembling a trade-mark already on the register with respect to such description of goods as to be calculated to deceive. It is on the question whether marks do so nearly resemble one another as to be calculated to deceive, and what extent of resemblance to an old mark ought to cause the rejection of an application, that the chief difference has arisen between the trade and those to whom the administration of the act has been intrusted. The tendency of the office has been to construe the words of the enactment more favorably towards applicants for new marks than the trade have thought right. We think the difference has arisen in part from the wording of the act.

The comptroller has felt unable to say that the two marks "so nearly" resemble each other as to be calculated to deceive. He has thus not considered himself at liberty to take into consideration to the extent that he otherwise might, the character of the market in which the mark is to serve its purpose. Two marks, when placed side by side, may exhibit many and various differences, yet the idea left upon the mind by both may be the same, so that a person acquainted with the mark first registered, and not having the two side by side for comparison, might well be deceived, if goods were allowed to be impressed with the second mark, into a belief that he was dealing with goods which bore the same mark as that with which he was acquainted. Take, for example, a mark representing a game of football; another mark may show the players in a different dress, and in very different positions, and yet the idea conveyed by each might be simply a game of football. It would be too much to expect that persons dealing with trade-marked goods, and relying, as they frequently do, upon the marks, should be able to remember the exact details of the marks upon the goods with which they are in the habit of dealing.

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In order to avoid misapprehension in the future we recommend, even though it may not be absolutely necessary, a slight amendment of the act, substituting for the words "so nearly resembling" the words "having such resemblance to;" and, further, we would suggest that when the question arises whether a mark applied for bears such resemblance to one on the register as to be calculated to deceive, it should be determined by considering what is the leading characteristic of each. The one might contain many, even most, of the same elements as the other, and yet the leading, or it may be the only impression, left on the mind might be very different, whilst, on the other hand, a critical comparison of two marks might disclose numerous points of difference and yet the idea which would remain with any person seeing them apart at different times might be the same.

In this connection we may refer to a point which has been the subject of considerable controversy, namely, how far registered or common marks when combined together are to be regarded as a new mark. We think that the juxtaposition of two or more such marks is not, if there be nothing more than this, a combination constituting a new mark. An important test appears to be whether the existing marks are so combined as to suggest a new idea. For instance, assuming a cat and a fiddle to be each an old mark, we do not think the mere representation of a cat and a fiddle together would be a new mark, but the representation of a cat playing upon a fiddle, the idea conveyed by which would be neither the cat nor the fiddle, but a cat playing upon a fiddle, would be a good combination, and might properly be registered. We think this view differs somewhat from that which has been at times, at all events, entertained by the board of trade, but it appears to us to be the sound one.

Where several common or open marks are worked into a single new design by being grouped together within a border or otherwise, we think that such a combination may be entitled to registration, but that it would be well to require that all the common elements should be disclaimed.

18. We have had under our serious consideration the question whether it would be expedient and possible to provide for the registration of what