CHAPTER XI

PROTECTION OF INDUSTRIAL PROPERTY

For the protection of industrial property, a convention and final protocol were concluded on March 20, 1883, at Paris, between Belgium, Brazil, France, Guatemala, Italy, the Netherlands, Portugal, Salvador, Servia, Spain, and the Swiss Confederation. Salvador withdrew on August 17, 1887. Other Powers gave their adhesion afterward; namely, Great Britain, Tunis, the Dominican republic, Norway, Sweden, the United States, Austria, Cuba, Germany, Japan, Mexico, Ceylon, and New Zealand. By the terms of the convention, certain enumerated colonies and possessions of France, Portugal, and Spain, were included. The official title of the organization formed by the agreement of the Powers is "The Union for the Protection of Industrial Property." The number and rank of the Powers adhering is sufficient to give their collective will the force of world law, and the convention is therefore placed in the code. The purpose of the Powers is expressed officially as follows:

Equally animated by the desire to assure, by common accord, a complete and efficacious protection to the industry and commerce of the subjects of the respective states, and to contribute to the safeguard of the rights of inventors, and to the loyalty of commercial transactions, (the original contracting Powers) have resolved to include a convention to that effect.

This convention, now become a chapter of world law, is as follows, according to the official translation from the French language, published by the state department of the United States, with amendments incorporated which were made by supplementary conventions of 1891 and 1900.

ART. 1. The governments of Belgium, of Brazil, of Spain, of France, of Guatemala, of Italy, of the Netherlands, of Portugal, of Salvador, of Servia, and of Switzerland, have constituted themselves into a state of union for the protection of industrial property.

ART. 2. The subjects or citizens of each of the contracting states shall enjoy, in all the other states of the union, so far as concerns patents for inventions, trade or commercial marks, and the commercial name, the advantages that the respective laws thereof at present accord, or shall afterwards accord, to subjects or citizens.

In consequence they shall have the same protection as these latter, and the same legal recourse against all infringements of their rights, under reserve of complying with the formalities and conditions imposed upon subjects or citizens by the domestic legislation of each state.

ART. 3. There are assimilated to the subjects or citizens of the contracting states, the subjects or citizens of states not forming part of the union, who are domiciled or have bona fide industrial or commercial establishments upon the territory of one of the states of the union.

ART. 4. Any one who shall have regularly deposited an application for a patent of invention of an industrial model, or design, of a trade or commercial mark, in one of the contracting states, shall enjoy, for the purpose of making the deposit in the other states, and under reserve of the rights of third parties, a right of priority during the periods hereinafter determined.

In consequence, the deposit subsequently made in one of the other states of the union before the expiration of these periods cannot be invalidated by acts performed in the interval, especially by another deposit, by the publication of the invention or its working, by the sale of copies of the design or model, by the employment of the mark.

The periods of priority above mentioned shall be 12 months for patents of invention and four months for designs or industrial models, as well as for trade or commercial marks.

ART. 4 bis. Patents applied for in the different contracting states by persons admitted to the benefit of the convention under the terms of Articles 2 and 3 shall be independent of the patents obtained for the same invention in the other states adherent or nonadherent to the union.

This provision shall apply to patents existing at the time of its going into effect. The same rule applies, in the case of adhesion of new states, to patents already existing on both sides at the time of the adhesion.

ART. 5. The introduction by the patentee into countries where the patent has been granted, of articles manufactured in any other of the states of the union, shall not entail forfeiture.

The patentee, however, shall be subject to the obligation of working his patent conformably to the laws of the country into which he has introduced the patented articles.

ART. 6. Every trade or commercial mark regularly deposited in the country of origin shall be admitted to deposit and so protected in all the other countries of the union.

The country where the depositor has his principal establishment shall be considered as country of origin.

If this principal establishment is not situated in one of the countries of the union, that shall be considered as country of origin to which the depositor belongs. The deposit may be refused if the object for which it is asked is considered contrary to morals and to public order.

ART. 7. The nature of the production upon which the trade or commercial mark is to be affixed cannot in any case be an obstacle to the deposit of the mark.

ART. 8. The commercial name shall be protected in all the countries of the union without obligation of deposit, whether it forms part or not of a trade or commercial mark.

ART. 9. Every production bearing, unlawfully, a trade or commercial mark, or a commercial name, may be seized upon importation into those of the states of the union in which such mark or such commercial name has a right to legal protection. The seizure shall take place either at the instance of the public prosecutor or of the interested party, conformably to the domestic legislation of each state.

In the states whose legislation does not admit of seizure on importation, such seizure may be replaced by prohibition of importation.

The authorities shall not be required to make the seizure in case of transit. ART. 10. The provisions of the preceding article shall be applicable to every production bearing falsely, as indication of origin, the name of a stated locality, when this indication shall be joined to a fictitious commercial name or a name borrowed with fraudulent intention.

Every producer, manufacturer, or trader engaged in the production, the manufacture, or the sale of this production when established either in the locality falsely indicated as place of origin or in the region where that locality is situated, is a reputed interested party.

ART. 10 bis. Those entitled of right under the convention (Articles 2 and 3) shall enjoy, in all the states of the union, the protection accorded to citizens or subjects against unfair competition.

ART. 11. The high contracting parties shall accord, conformably to the legislation of each country, a temporary protection to patentable inventions, to industrial designs, or models, as well as to trademarks for the productions which shall be shown at official or officially recognized international expositions organized upon the territory of one of them.

ART. 12. Each one of the high contracting parties engages to establish a special service of industrial property and a central depot, for giving information to the public concerning patents of invention, industrial designs or models, and trade or commercial marks.

ART. 13. An international office shall be organized under the title of "International Bureau of the Union for the Protection of Industrial Property."

This bureau, the cost of which shall be supported by the governments of all the contracting states, shall be placed under the high authority of the superior administration of the Swiss Confederation, and shall work under its supervision. Its powers shall be determined by common accord between the states of the union.

ART. 14. The present convention shall be submitted to periodical revisions for the purpose of introducing improvements calculated to perfect the system of the union. With this object, conferences shall take place successively in one of the contracting states between the delegates of said states.

ART 15. It is understood that the high contracting parties respectively reserve the right to make, separately, between themselves, special arrangements for the protection of industrial property so far as these arrangements shall not interfere with the provisions of the present convention.

ART. 16. The states that have not taken part in the present convention shall be admitted to adhere to the same upon their application.

This adhesion shall be notified through the diplomatic channel to the govern ment of the Swiss Confederation, and by the latter to all the others.

It shall convey of full right accession to all the clauses, and admission to all the advantages stipulated by the present convention, and shall go into force a month after the sending of the notification given by the Swiss government to the unionist states, unless a later date shall have been indicated by the adhering state.

ART. 17. The execution of the reciprocal engagements contained in the present convention is subordinated, so far as needful, to the accomplishment of the formalities and rules established by the constitutional laws of such of the high contracting parties as are bound to ask the application thereof, which they agree to do with the shortest delay possible.

ART. 18. The present convention shall be put into execution within a month after exchange of ratifications, and shall remain in force during a period of time not determined, until the expiration of one year from the day upon which the denunciation shall be made.

This denunciation shall be addressed to the government empowered to receive adhesions. It shall only produce its effect as regards the state making it, the convention remaining executory for the other contracting parties.

ART. 19. The present convention shall be ratified and the ratifications shall be exchanged at Paris, within the period of one year at the latest.

In witness whereof the respective plenipotentiaries have signed it and affixed to it their seals.

Done at Paris the 20th of March, 1883.

[Signatures]

FINAL PROTOCOL

On proceeding to the signature of the convention concluded this day between the governments of Belgium, Brazil, Spain, France, Guatemala, Italy, the Netherlands, Portugal, Salvador, Servia, and Switzerland, for the protection of industrial property, the undersigned plenipotentiaries have agreed on the following:

1. The words "industrial property" are to be understood in their widest acceptation, in the sense that they apply not only to the productions of industry properly so called, but equally to the productions of agriculture (wines, grains, fruits, cattle, etc.) and to mineral productions used in commerce (mineral waters, etc.). 2. Under the name "patents of invention" are included the various classes of industrial patents granted by the laws of the contracting states, such as patents of importation, patents of improvement, etc.

3. It is understood that the final provision of Article 2 of the convention shall in no respect infringe upon the laws of any of the contracting states, so far as concerns the procedure before the courts and the competence of the said courts.

3. bis. The patentee, in each country, shall not suffer forfeiture because of nonworking until after a minimum period of three years, to date from the

deposit of the application in the country concerned, and in the case where the patentee shall not justify the reasons of his inaction.

4. Paragraph 1 of Article 6 is to be understood in the sense that no trade or commercial mark shall be excluded from protection, in any of the states of the union, by the mere fact that it may not satisfy, in respect to the signs composing it, the conditions of the laws of this state, provided that it does satisfy, in this regard, the laws of the country of origin, and that it has been in this latter country duly deposited. Saving this exception, which concerns only the form of the mark, and under reservation of the provisions of the other articles of the convention, the domestic legislation of each of the states shall receive its due application.

In order to avoid all misinterpretation, it is understood that the use of public armorial bearings and decorations may be considered contrary to public order in the sense of the final paragraph of Article 6.

5. The organization of a special service of industrial property mentioned in Article 12 shall include, as far as is possible, the publication in each state of an official periodical.

6. The expenses of the international bureau instituted by Article 13 shall be supported by the contracting states in common. They cannot in any event exceed the sum of 60,000 francs per annum.

⚫ In order to determine the contributory share of each of the states in this sum total of expenses, the contracting states, and those which may hereafter adhere to the union, shall be divided into six classes, each contributing in the proportion of a certain number of units, namely:

These coefficients shall be multiplied by the number of the states of each class, and the sum of the products thus obtained shall furnish the number of units by which the total expense is to be divided. The quotient will give the amount of the unit of expense.

The contracting states are classified as follows in respect to the division of the expenses:

The Swiss government shall supervise the expenditure of the international bureau, make the necessary advances, and state the annual account, which shall be communicated to all the other governments.