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Back
Trade Marks Ordinance (Ordinance No. 35 of 2000)
TRADE MARKS ORDINANCE Ord. No. 35 of 2000
CONTENTS
ORDINANCE No. 35 OF 2000
PART I - PRELIMINARY
1. Short title and commencement
2. Interpretation
3. Meaning of "trademark"
4. Meaning of "well-known trade mark"
5. Meaning of "earlier trade mark"
6. References to use of trade mark or sign
7. References to use likely to cause confusion
8. Meaning of "the register" and "registration"
9. Ordinance binds Government
PART II - REGISTERED TRADE MARKS
Introductory
10. Registered trade mark a property right
Grounds for refusal of registration
11. Absolute grounds for refusal of registration
12. Relative grounds for refusal of registration
13. Honest concurrent use, etc.
Effects of registered trade mark
14. Rights conferred by registered trade mark
15. Disclaimers, limitations and conditions
PART III - INFRINGEMENT OF REGISTERED TRADE MARKS
Preliminary
16. References to infringement
17. References to infringing goods, material or articles
Infringing acts
18. Infringement of registered trade mark
19. Exceptions to infringement
20. Exhaustion of rights conferred by registered trade mark
21. Use in advertising, etc.
Infringement proceedings
22. Action for infringement
23. Order for delivery up
24. Limitation on order for delivery up
25. Order for disposal
26. Proceedings for relief from groundless threats of infringement proceedings
PART IV - REGISTERED TRADE MARKS AS OBJECTS OF PROPERTY
27. Nature of registered trade mark
28. Co-ownership of registered trade mark
29. Registration of transactions affecting registered trade mark
30. Trust and equities
31. Application for registration of a trademark as an object of property
PART V - LICENSING OF REGISTERED TRADE MARKS
Preliminary
32. Interpretation
Licences
33. Licences may be general or limited
34. Exclusive licence may provide same rights as assignment, etc.
Infringement proceedings
35. Rights of licensees generally
36. Rights of certain exclusive licensees
37. Rights of sub-licensees under certain exclusive licences
PART VI - APPLICATION AND REGISTRATION PROCEDURES
Application for registration of trade mark
38. Application for registration
39. Filing date
40. Classification of goods and services
41. Claim to priority
Examination and publication
42. Examination of application
43. Publication of particulars of application
Opposition, withdrawal and amendment
44. Opposition proceedings
45. Withdrawal of application
46. Amendment of application
Registration
47. Registration
48. Date of registration
49. Duration of registration
50. Renewal of registration
Supplementary
51. Division, merger and registration of series
PART VII - PROCEEDINGS AFFECTING REGISTRATION
Revocation, invalidity and variation
52. Revocation of registration
53. Declaration of invalidity of registration
54. Variation of registration
Alteration and surrender
55. Alteration of registered trade mark
56. Surrender of registered trade mark
Rectification, correction and amendment of the register
57. Rectification or correction
58. Amendment of entries to accord with new classification, etc.
Acquiescence in use of registered trade mark
59. Effect of acquiescence
PART VIII - DEFENSIVE TRADE MARKS, COLLECTIVE MARKS AND CERTIFICATION MARKS
60. Defensive trade marks
61. Collective marks
62. Certification marks
PART IX - PARIS CONVENTION AND WORLD TRADE ORGANIZATION AGREEMENT: SUPPLEMENTARY PROVISIONS
63. Well-known trade marks: Article 6bis of Paris Convention
64. National emblems, etc.: Article 6ter of Paris Convention
65. Emblems, etc., of certain international organizations: Article 6ter of Paris Convention
66. Notification under Article 6ter of Paris Convention
PART X - ADMINISTRATIVE AND OTHER SUPPLEMENTARY PROVISIONS
The register of trade marks
67. Register to be kept
68. Right to inspect the register
69. Right to copies of entries
Powers and duties of Registrar
70. Decisions of Registrar to be taken after hearing
71. Registrar's powers in proceedings before the Registrar
72. Power to give preliminary advice, etc.
73. Power to specify official journal, etc.
74. Power to require use of forms
75. Immunity of Registrar as regards official acts
Legal proceedings, appeals and related matters
76. Language of proceedings before Registrar
77. Procedure in case of option to apply to court or Registrar
78. Application of rules of evidence
79. Register is prima facie evidence
80. Registration is prima facie evidence of validity, etc.
81. Certificate of validity of contested registration
82. Burden in civil proceedings of proving use of trade mark
83. Registrar's appearance in proceedings involving the register
84. Appeals from decisionsor orders of Registrar
85. General powers of court
86. Costs of proceedings before court
87. Costs of proceedings before Registrar
Miscellaneous matters
88. Recognition of agents
89. Hours of business and business days
90. Government's right to sell forfeited articles
PART XI - SUBSIDIARY LEGISLATION
91. Rules
92. Regulations
PART XII - OFFENCES
93. Falsification of the register
94. Falsely representing trade mark as registered
95. Misuse of title "Trade Marks Registry"
96. Offences committed by and proceedings relating to corporations
PART XlII - TRANSITIONAL PROVISIONS, CONSEQUENTIAL AND RELATED AMENDMENTS AND REPEALS
97. Transitional matters, etc.
98. Consequential and related amendments
99. Repeals
SCHEDULE 1 - PARIS CONVENTION COUNTRIES AND WTO MEMBERS
Countries which have acceded tothe Paris Convention
Countries, territories and areas which have acceded to the World Trade Organization Agreement (not including countries which have acceded to the Paris Convention)
SCHEDULE 2 - DETERMINATION OF WELL-KNOWN TRADE MARKS
I. Factors for consideration
2. Factors not required to be established
SCHEDULE 3 - COLLECTIVE MARKS
General
Signs of which a collective mark may consist
Indication of geographical origin
Mark not to be misleading as to character or significance
Regulations governing use of collective mark
Approval of regulations by Registrar
Regulations to be open to inspection
Amendment of regulations
Infringement: rights of authorized users
Grounds for revocation of registration
Grounds for invalidity of registration
SCHEDULE 4 - CERTIFICATION MARKS
General
Signs of whicha certification mark may consist
Indication of geographical origin
Nature of owner's trade or business
Mark not to be misleading as to character or significance
Regulations governing use of certification mark
Approval of regulations, etc.
Regulations to be open to inspection
Amendment of regulations
Consent to assignment of registered certification mark
Infringement: rights of authorized users
Grounds for revocation of registration
Grounds for invalidity of registration
SCHEDULE 5 - TRANSITIONAL MATTERS
Preliminary
Existing registered marks
Effects of registration-infringement
Infringing goods, material or articles
Rights and remedies of licensee or authorized user
Co-ownershipof registered mark
Assignment,etc. of registered mark
Licensing of registered mark
Pending applications for registration
Conversion of pending application
Trade marks registered according to old classification
Claim to priority
Duration and renewal of registration
Pending application for alteration of registered mark
Revocation for non-use
Application for rectification, etc.
Regulations as to use of certification mark
Certificate of validity of contested registration
ANNEX - PROVISIONS OF THE REPEALED TRADE MARKS ORDINANCE (CAP. 43) REFERRED TO IN SCHEDULE 5 (TRANSITIONAL MATTERS) ANDOTHER RELEVANT PROVISIONS OF THE REPEALED ORDINANCE (AS IN OPERATION IMMEDIATELY BEFORE ITS REPEAL BY SECTION 99 OF THIS ORDINANCE)
2. Interpretation
9. Trade marks registrable in Part A
10. Trade marks registrable in Part B
14. Advertisement of application
15. Opposition to registration
16. Registration subject to disclaimer
19. Jointly owned trade marks relating to goods
19A. Jointly owned trade marks relating to services
22. Concurrent use
24. Associated trade marks
25. Combined trade marks
26. Series of trade marks
37. Removal from register and imposition of limitations on ground of non-use
43. Registration of assignments and transmissions
48. General power to rectify entries in register
49. Power to expunge or vary registration for breach of condition
50. Correction of register
51. Alteration of registered trade mark
56. Defensive trade marks to be registered as associated trade marks
58. Registration as a registered user Meaning of "permitted use"
59. Proceedings for infringement
60. Variation or cancellation of registration as a registered user
62. Registrar's decision subject to appeal to Court
63. Right to use not assignable or transmissible
64. Marks registrable as certification trade marks
65. Application for registration as certification trade mark
75. Certificate of validity
76. Trade usage, etc., to be considered
92. Transitional provisions relating to the Intellectual Property (World Trade Organization Amendments) Ordinance 1996
SCHEDULE 6 - CONSEQUENTIAL AND RELATED AMENDMENTS
Specification of Public Offices
1. Schedule amended
The Rules of the High Court
2. Appeals and applications under theTrade Marks Ordinance
Pesticides Ordinance
3. Trade marks, trade descriptions, patents and copyright not affected
Solicitors (Trade Marks and Patents) Costs Rules
4. Interpretation
Federation of Hong Kong Industries Ordinance
5. Powersof Federation
Trade Descriptions Ordinance
6. Interpretation
7. Offences in respectof trade marks
8. Prohibited import and export of certain goods
9. Disclosure of information, etc.
10. Section substituted
11. Application for detention order
12. Issuance of detention order
13. Enforcement of detention order
14. Variation or setting aside of detention order
15. Disclosure of information
16. Inspection of goods, release of samples, etc.
17. Costs payable
18. Compensation payable to importer, etc.
19. Trade marks containing trade descriptions
Trade Mark (Border Measures) Rules
20. Application for detention order
21. Application for directions
22. Application to extend period of detention
23. Provision of security, etc.
25. Service of documents by Commissioner or authorized officers
Smoking (Public Health) Ordinance
26. Interpretation