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Trademark Law

1. A "trade mark" means any sign which is capable of distinguishing the goods or services of one undertaking from those of other undertakings and which is capable of being represented graphically. A trade mark may consist of words (including personal names), indications, designs, letters, characters, numerals, figurative elements, colours, sounds, smells, the shape of goods or their packaging and any combination of such signs.

2. The following shall not be registered-

(a) trade marks which are devoid of any distinctive character;

(b) trade marks which consist exclusively of signs which may serve, in trade or business, to designate the kind, quality, quantity, intended purpose, value, geographical origin, time of production of goods or rendering of services, or other characteristics of goods or services; and

(c) trade marks which consist exclusively of signs which have become customary in the current language or in the honest and established practices of the trade.

3. A trade mark shall not be registered if it is contrary to accepted principles of morality or likely to deceive the public.

4. A trade mark shall not be registered if the application for registration of the trade mark is made in bad faith.

5. A trade mark shall not be registered if, or to the extent that, it consists of or contains-

(a) the national flag or its design;
(b) the national emblem or its design;
(c) the regional flag or its design; or
(d) the regional emblem or its design.

6. A trade mark shall not be registered if it is identical to an earlier trade mark and the goods or services for which the application for registration is made are identical to those for which the earlier trade mark is protected.

7. A trade mark shall not be registered if the trade mark is identical to an earlier trade mark; the goods or services for which the application for registration is made are similar to those for which the earlier trade mark is protected; and the use of the trade mark in relation to those goods or services is likely to cause confusion on the part of the public.

8. A trade mark shall not be registered if the trade mark is similar to an earlier trade mark; the goods or services for which the application for registration is made are identical or similar to those for which the earlier trade mark is protected; and the use of the trade mark in relation to those goods or services is likely to cause confusion on the part of the public.

9. A trade mark which is identical or similar to an earlier trade mark; and proposed to be registered for goods or services which are not identical or similar to those for which the earlier trade mark is protected, shall not be registered if, or to the extent that, the earlier trade mark is entitled to protection under the Paris Convention as a well-known trade mark and the use of the later trade mark without due cause would take unfair advantage of, or be detrimental to, the distinctive character or repute of the earlier trade mark.

10. Subject to subsection (6), a trade mark shall not be registered if, or to the extent that, its use in Hong Kong is liable to be prevented by virtue of the law of passing off); or by virtue of the law of copyright or registered designs.

11. The owner of a registered trade mark has exclusive rights in the trade mark which are infringed by use of the trade mark in Hong Kong without his consent. The acts constituting infringement of a registered trade mark, if done without the consent of the owner, are specified in section 18 (infringement of registered trade mark) but are subject to the exceptions specified in section 19 (exceptions to infringement), section 20 (exhaustion of rights conferred by registered trade mark) and section 21 (use in advertising, etc.). The rights of the owner of a registered trade mark have effect from the date of registration of the trade mark.

12. A person infringes a registered trade mark if he uses in the course of trade or business a sign which is identical to the trade mark in relation to goods or services which are identical to those for which it is registered.

13. A person infringes a registered trade mark if he uses in the course of trade or business a sign which is identical to the trade mark in relation to goods or services which are similar to those for which it is registered; and the use of the sign in relation to those goods or services is likely to cause confusion on the part of the public.

14. A person infringes a registered trade mark if he uses in the course of trade or business a sign which is similar to the trade mark in relation to goods or services which are identical or similar to those for which it is registered; and the use of the sign in relation to those goods or services is likely to cause confusion on the part of the public.

15. A person infringes a registered trade mark if he uses in the course of trade or business a sign which is identical or similar to the trade mark in relation to goods or services which are not identical or similar to those for which the trade mark is registered; the trade mark is entitled to protection under the Paris Convention as a well-known trade mark; and the use of the sign, being without due cause, takes unfair advantage of, or is detrimental to, the distinctive character or repute of the trade mark.

16. For the purposes of infringement, a person uses a sign if, in particular, he-

(a) applies it to goods or their packaging;
(b) offers or exposes goods for sale under the sign;
(c) puts goods on the market under the sign;
(d) stocks goods under the sign for the purpose of offering or exposing them for sale or of putting them on the market;
(e) offers or supplies services under the sign;
(f) imports or exports goods under the sign; or
(g) uses the sign on business papers or in advertising.

17. A registered trade mark is not infringed by-

(a) the use by a person of his own name or address or the name of his place of business;
(b) the use by a person of the name of his predecessor in business or the name of his predecessor's place of business;
(c) the use of signs which serve to designate the kind, quality, quantity, intended purpose, value, geographical origin, time of production of goods or rendering of services, or other characteristics of goods or services; or
(d) the use of the trade mark where it is necessary to indicate the intended purpose of goods or services (for example, as accessories or spare parts),

provided the use is in accordance with honest practices in industrial or commercial matters.

18. A registered trade mark is not infringed by the use by any person in the course of trade or business in Hong Kong of an unregistered trade mark or other sign in relation to goods or services if the unregistered trade mark or other sign has been so used in Hong Kong by that person or a predecessor in title continuously from a date preceding the earlier of the date of first use in Hong Kong of the trade mark which is registered; and the date of registration in Hong Kong of that trade mark.

19. An infringement of a registered trade mark is actionable by the owner of the trade mark. In infringement proceedings all such relief by way of damages, injunctions, accounts or otherwise shall be available to the owner of a registered trade mark as is available in respect of the infringement of any other property right.

(Source of information: Trade Marks Ordinance of Hong Kong)

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