Absolute grounds
Applications may be opposed on absolute grounds as follows:-
- The sign is not one 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
- Trade marks which are devoid of any distinctive character
- 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
- 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
- A sign shall not be registered as a trade mark in relation to
goods if it consists exclusively of-
- (a) the shape that results from the nature of the goods
themselves;
- (b) the shape of goods that is necessary to obtain a
technical result; or
- (c) the shape that gives substantial value to the goods.
- A trade mark shall not be registered if it is-
- (a) contrary to accepted principles of morality; or
- (b) likely to deceive the public.
- A trade mark shall not be registered if, or to the extent that-
- (a) its use is prohibited in Hong Kong under or by virtue of
any law; or
- (b) the application for registration of the trade mark is
made in bad faith.
- 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.
- The trade mark contains flags, armorial bearings, state
emblems etc of a Paris Convention country or WTO member
or certain international organization which are protected
under the Paris Convention or World Trade Organization
Agreement
- Relative grounds
- Applications may be opposed on relative grounds as follows:-
- A trade mark shall not be registered if-
- (a) the trade mark is identical to an earlier trade mark; and
- (b) the goods or services for which the application for
registration is made are identical to those for which the
earlier trade mark is protected.
- A trade mark shall not be registered if-
- (a) the trade mark is identical to an earlier trade mark;
- (b) 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
- (c) the use of the trade mark in relation to those goods or
services is likely to cause confusion on the part of the
public.
- A trade mark shall not be registered if-
- (a) the trade mark is similar to an earlier trade mark;
- (b) 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
- (c) the use of the trade mark in relation to those goods or
services is likely to cause confusion on the part of the
public.
- A trade mark which is-
- (a) identical or similar to an earlier trade mark; and
- (b) 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.
- A trade mark shall not be registered if, or to the extent that,
its use in Hong Kong is liable to be prevented-
- (a) by virtue of any rule of law protecting an unregistered
trade mark or other sign used in the course of
trade or business (in particular, by virtue of the law of
passing off); or
- (b) by virtue of an earlier right other than those referred to
hereinabove (in particular, by virtue of the law of copyright
or registered designs)
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