TRADE MARKS ORDINANCE
(4) Unless the context otherwise requires, references in this Ordinance to a trade mark shall be construed as including references to a certification mark, collective mark and defensive trade mark.
4. Meaning of “well-known trade mark”
(1) References in this Ordinance to a trade mark which is entitled to protection under the Paris Convention as a well-known trade mark shall be construed as references to a trade mark which is well known in Hong Kong and which is the trade mark of a person who—
- (a) is a national of, or is domiciled or ordinarily resident in, a Paris Convention country or WTO member;
- (b) has a right of abode in Hong Kong; or
- (c) has a real and effective industrial or commercial establishment in a Paris Convention country, a WTO member or Hong Kong,
whether or not that person carries on business in Hong Kong or owns any goodwill in a business in Hong Kong.
(2) In determining for the purposes of subsection (1) whether a trade mark is well known in Hong Kong, the Registrar or the court shall have regard to Schedule 2.
(3) References in this Ordinance to the owner of a well-known trade mark shall be construed in accordance with subsection (1).
5. Meaning of “earlier trade mark”
(1) In this Ordinance, “earlier trade mark” (在先商標), in relation to another trade mark, means—
- (a) a registered trade mark which has a date of the application for registration earlier than that of the other trade mark, taking into account the priorities claimed in respect of each trade mark, if any; or
- (b) a trade mark which, at the date of the application for registration of the other trade mark or, where appropriate, at the date of the priority claimed in respect of that application for registration, was entitled to protection under the Paris Convention as a well-known trade mark.
(2) References in this Ordinance to an earlier trade mark shall be construed as including a trade mark in respect of which an application for registration has been made under this Ordinance and which, if registered, would constitute an earlier trade mark under or by virtue of subsection (1)(a), subject to its being so registered.
