TRADE MARKS ORDINANCE
none of the factors may be relevant, and the decision may be based on additional factors that are not mentioned in subsection (2). Such additional factors may be relevant alone, or in combination with one or more of the factors mentioned in subsection (2).
(4) For the purpose of subsection (2)(a), “relevant sectors of the public” (有關的公眾界別) includes, but is not limited to—
- (a) actual or potential consumers of the type of goods or services to which the trade mark applies;
- (b) persons involved in channels of distribution of the type of goods or services to which the trade mark applies; and
- (c) business circles dealing with the type of goods or services to which the trade mark applies.
(5) Where a trade mark is determined to be well known in at least one relevant sector of the public in Hong Kong, it shall be considered to be well known in Hong Kong.
(6) For the purpose of subsection (2)(e), “competent authorities in foreign jurisdictions” (外地主管當局) means administrative, judicial or quasi-judicial authorities in jurisdictions other than Hong Kong that are competent to determine whether a trade mark is a well-known trade mark, or in enforcing the protection of well known trade marks, in their respective jurisdictions.
2. Factors not required to be established
For the purpose of determining whether a trade mark is well known in Hong Kong, it is not necessary to establish—
- (a) that the trade mark has been used, or has been registered, in Hong Kong;
- (b) that an application for registration of the trade mark has been filed in Hong Kong;
- (c) that the trade mark is well known, or has been registered, in a jurisdiction other than Hong Kong;
- (d) that an application for registration of the trade mark has been filed in a jurisdiction other than Hong Kong; or
- (e) that the trade mark is well known by the public at large in Hong Kong.
Collective Marks
General
1. This Ordinance applies to collective marks subject to the provisions of this Schedule.
Signs of which a collective mark may consist
2. In relation to a collective mark, the reference in section 3(1) of this Ordinance (meaning of “trade mark”) to distinguishing goods or services of one undertaking from those of other undertakings shall be construed as a reference to distinguishing goods or services of members of the association which is the owner of the collective mark from those of other undertakings.
Indication of geographical origin
3. (1) Notwithstanding section 11(1)(c) of this Ordinance (absolute grounds for refusal of registration), a collective mark which consists of a sign which may serve, in trade or business, to designate the geographical origin of goods or services may be registered.
(2) However, the owner of such a collective mark is not entitled to prohibit the use of the sign in accordance with honest practices in industrial or commercial matters, in particular, by a person who is entitled to use a geographical name.
