TRADE DESCRIPTIONS ORDINANCE - CHAPTER 362 TRADE DESCRIPTIONS ORDINANCE - LONG TITLE Long title VerDate:01/07/1997 Adaptation amendments retroactively made - see 65 of 2000 s. 3 To prohibit false trade descriptions, false marks and misstatements in respect of goods provided in the course of trade; to confer power to require information or instruction relating to goods to be marked on or to accompany the goods or to be included in advertisements; to restate the law relating to forgery of trade marks; and for purposes connected therewith. (Amended 65 of 2000 s. 3) [1 April 1981] L.N. 64 of 1981 (Originally 69 of 1980) TRADE DESCRIPTIONS ORDINANCE - LONG TITLE Long title VerDate:30/06/1997 To prohibit false trade descriptions, false marks and misstatements in respect of goods provided in the course of trade; to confer power to require information or instruction relating to goods to be marked on or to accompany the goods or to be included in advertisements; to prohibit the unauthorized use of devices or emblems signifying an award by the Queen or the Governor; to restate the law relating to forgery of trade marks; and for purposes connected therewith. [1 April 1981] L.N. 64 of 1981 (Originally 69 of 1980) TRADE DESCRIPTIONS ORDINANCE - SECT 1 Short title VerDate:30/06/1997 PART I PRELIMINARY This Ordinance may be cited as the Trade Descriptions Ordinance. TRADE DESCRIPTIONS ORDINANCE - SECT 2 Interpretation VerDate:17/06/2005 (1) In this Ordinance, unless the context otherwise requires- "advertisement" (宣傳品) includes a catalogue, a circular and a price list; "authorized officer" (獲授權人員) means a public officer appointed under section 14; "Commissioner" (關長) means the Commissioner of Customs and Excise and any Deputy or Assistant Commissioner of Customs and Excise; (Added L.N. 294 of 1982. Amended 65 of 2000 s. 3) "Convention country" (公約國家) means a Paris Convention country or WTO member as defined in section 2(1) of the Trade Marks Ordinance (Cap 559); (Replaced 35 of 2000 s. 98) "false trade description" (虛假商品說明) means- (a) a trade description which is false to a material degree; (b) a trade description which, though not false, is misleading, that is to say, likely to be taken for such an indication of any of the matters specified in the definition of "trade description" as would be false to a material degree; (c) anything which, though not a trade description, is likely to be taken for an indication of any of the matters specified in the definition of "trade description" and, as such an indication, would be false to a material degree; (d) a false indication, or anything likely to be taken as an indication which would be false, that any goods comply with a standard specified or recognized by any person or implied by the approval of any person if there is no such person or no standard so specified, recognized or implied; or (e) a false indication, or anything likely to be taken as an indication which would be false, that any goods of any class or type- (i) being goods in respect of which duty is payable under the laws of Hong Kong, are supplied free of the duty so payable in respect of that class or type of goods; or (Amended L.N. 272 of 1990) (ii) not being goods in respect of which duty is payable under the laws of Hong Kong, are supplied free of the duty so payable; [cf. 1968 c. 29 s. 3 U.K.] "forged trade mark" (偽造商標) has the meaning assigned to it by section 9(3); (Added 35 of 2000 s. 98) "goods" (貨品) includes vessel and aircraft, things attached to land and growing crops; "goods in transit" (過境貨品) means goods which- (a) are brought into Hong Kong solely for the purpose of taking them out of Hong Kong; and (b) remain at all times in or on the vessel or aircraft in or on which they are brought into Hong Kong; (Amended 43 of 1996 s. 2) "import" (進口) means to bring, or cause to be brought, into Hong Kong; "infringing goods" (侵犯權利貨品) means goods to which- (a) a forged trade mark is applied; or (b) a trade mark or mark so nearly resembling a trade mark as to be calculated to deceive is falsely applied; (Added 35 of 2000 s. 98) "mark" (標記), when used as a noun, includes a sign capable of distinguishing the goods of one undertaking from those of other undertakings; (Added 35 of 2000 s. 98) "premises" (處所) includes any place and any stall, vehicle, vessel or aircraft; "trade description" (商品說明) means an indication, direct or indirect, and by whatever means given, of any of the following matters with respect to any goods or parts of goods, that is to say- (a) quantity (which includes length, width, height, area, volume, capacity, weight and number), size or gauge; (b) method of manufacture, production, processing or reconditioning; (c) composition; (d) fitness for purpose, strength, performance, behaviour or accuracy; (e) any physical characteristics not included in the preceding paragraphs; (f) testing by any person and results thereof, (g) approval by any person or conformity with a type approved by any person; (h) place or date of manufacture, production, processing or reconditioning; (i) person by whom manufactured, produced, processed or reconditioned; (j) other history, including previous ownership or use; [cf. 1968 c. 29 s. 2(1) U.K.] "trade mark" (商標) means- (a) a trade mark relating to goods registered or deemed to be registered in Hong Kong under the Trade Marks Ordinance (Cap 559); (b) a certification mark or collective mark relating to goods registered or deemed to be registered in Hong Kong under the Trade Marks Ordinance (Cap 559); (c) a trade mark- (i) registered in a Convention country; and (ii) capable of registration in Hong Kong under the Trade Marks Ordinance (Cap 559) as a trade mark relating to goods; (d) a trade mark- (i) in respect of which an application for registration has been made in a Convention country; and (ii) capable of registration in Hong Kong under the Trade Marks Ordinance (Cap 559) as a trade mark relating to goods; and (iii) in respect of which a period of 6 months has not expired since the date of the application for the registration thereof in a Convention country. (Replaced 35 of 2000 s. 98) (2) (a) For the purposes of this Ordinance, goods shall be deemed to have been- (i) manufactured in the place in which they last underwent a treatment or process which changed permanently and substantially the shape, nature, form or utility of the basic materials used in their manufacture; or (ii) produced in the place in which they were wholly grown or mined. (b) The Commissioner may by order specify- (Amended L.N. 294 of 1982) (i) in relation to any description of goods, what treatment or process is to be regarded for the purposes of this Ordinance as resulting or not resulting in a permanent and substantial change in shape, nature, form or utility of the basic materials used in their manufacture; (ii) in relation to any description of goods different parts of which were manufactured or produced in different places, or of goods assembled in a place different from that in which their parts were manufactured or produced, in which of those places the goods are to be regarded for the purposes of this Ordinance as having been manufactured or produced. [cf. 1968 c. 29 s. 36 U.K.] (c) This subsection shall not apply to goods which are the subject of a notice published under subsection (2A). (Added 96 of 1991 s. 2. Amended 9 of 2005 s. 2) (2A) The Director-General of Trade and Industry may by notice in the Gazette specify in relation to any description of goods (being goods that are subject to a scheme of import or export control specified in the notice) the place in which the goods are to be regarded for the purposes of this Ordinance as having been manufactured or produced, and any such goods shall, for the purposes of this Ordinance, be deemed to have been manufactured or produced in such place. (Added 96 of 1991 s. 2. Amended L.N. 173 of 2000) (3) For the purposes of this Ordinance, a trade description or statement published in any newspaper, book or periodical or in any film or sound or television broadcast shall not be deemed to be a trade description applied or statement made in the course of a trade or business unless it is or forms part of an advertisement. [cf. 1968 c. 29 s. 39(2) U.K.] "advertisement" (宣傳品) "authorized officer" (獲授權人員) "Commissioner" (關長) "Convention country" (公約國家) "false trade description" (虛假商品說明) "forged trade mark" (偽造商標) "goods" (貨品) "goods in transit" (過境貨品) "import" (進口) "infringing goods" (侵犯權利貨品) "mark" (標記) "premises" (處所) "trade description" (商品說明) "trade mark" (商標) TRADE DESCRIPTIONS ORDINANCE - SECT 2 Interpretation VerDate:04/04/2003 Adaptation amendments retroactively made - see 65 of 2000 s. 3 (1) In this Ordinance, unless the context otherwise requires- "advertisement" (宣傳品) includes a catalogue, a circular and a price list; "authorized officer" (獲授權人員) means a public officer appointed under section 14; "Commissioner" (關長) means the Commissioner of Customs and Excise and any Deputy or Assistant Commissioner of Customs and Excise; (Added L.N. 294 of 1982. Amended 65 of 2000 s. 3) "Convention country" (公約國家) means a Paris Convention country or WTO member as defined in section 2(1) of the Trade Marks Ordinance (Cap 559); (Replaced 35 of 2000 s. 98) "false trade description" (虛假商品說明) means- (a) a trade description which is false to a material degree; (b) a trade description which, though not false, is misleading, that is to say, likely to be taken for such an indication of any of the matters specified in the definition of "trade description" as would be false to a material degree; (c) anything which, though not a trade description, is likely to be taken for an indication of any of the matters specified in the definition of "trade description" and, as such an indication, would be false to a material degree; (d) a false indication, or anything likely to be taken as an indication which would be false, that any goods comply with a standard specified or recognized by any person or implied by the approval of any person if there is no such person or no standard so specified, recognized or implied; or (e) a false indication, or anything likely to be taken as an indication which would be false, that any goods of any class or type- (i) being goods in respect of which duty is payable under the laws of Hong Kong, are supplied free of the duty so payable in respect of that class or type of goods; or (Amended L.N. 272 of 1990) (ii) not being goods in respect of which duty is payable under the laws of Hong Kong, are supplied free of the duty so payable; [cf. 1968 c. 29 s. 3 U.K.] "forged trade mark" (偽造商標) has the meaning assigned to it by section 9(3); (Added 35 of 2000 s. 98) "goods" (貨品) includes vessel and aircraft, things attached to land and growing crops; "goods in transit" (過境貨品) means goods which- (a) are brought into Hong Kong solely for the purpose of taking them out of Hong Kong; and (b) remain at all times in or on the vessel or aircraft in or on which they are brought into Hong Kong; (Amended 43 of 1996 s. 2) "import" (進口) means to bring, or cause to be brought, into Hong Kong; "infringing goods" (侵犯權利貨品) means goods to which- (a) a forged trade mark is applied; or (b) a trade mark or mark so nearly resembling a trade mark as to be calculated to deceive is falsely applied; (Added 35 of 2000 s. 98) "mark" (標記), when used as a noun, includes a sign capable of distinguishing the goods of one undertaking from those of other undertakings; (Added 35 of 2000 s. 98) "premises" (處所) includes any place and any stall, vehicle, vessel or aircraft; "trade description" (商品說明) means an indication, direct or indirect, and by whatever means given, of any of the following matters with respect to any goods or parts of goods, that is to say- (a) quantity (which includes length, width, height, area, volume, capacity, weight and number), size or gauge; (b) method of manufacture, production, processing or reconditioning; (c) composition; (d) fitness for purpose, strength, performance, behaviour or accuracy; (e) any physical characteristics not included in the preceding paragraphs; (f) testing by any person and results thereof, (g) approval by any person or conformity with a type approved by any person; (h) place or date of manufacture, production, processing or reconditioning; (i) person by whom manufactured, produced, processed or reconditioned; (j) other history, including previous ownership or use; [cf. 1968 c. 29 s. 2(1) U.K.] "trade mark" (商標) means- (a) a trade mark relating to goods registered or deemed to be registered in Hong Kong under the Trade Marks Ordinance (Cap 559); (b) a certification mark or collective mark relating to goods registered or deemed to be registered in Hong Kong under the Trade Marks Ordinance (Cap 559); (c) a trade mark- (i) registered in a Convention country; and (ii) capable of registration in Hong Kong under the Trade Marks Ordinance (Cap 559) as a trade mark relating to goods; (d) a trade mark- (i) in respect of which an application for registration has been made in a Convention country; and (ii) capable of registration in Hong Kong under the Trade Marks Ordinance (Cap 559) as a trade mark relating to goods; and (iii) in respect of which a period of 6 months has not expired since the date of the application for the registration thereof in a Convention country. (Replaced 35 of 2000 s. 98) (2) (a) For the purposes of this Ordinance, goods shall be deemed to have been- (i) manufactured in the country in which they last underwent a treatment or process which changed permanently and substantially the shape, nature, form or utility of the basic materials used in their manufacture; or (ii) produced in the country in which they were wholly grown or mined. (b) The Commissioner may by order specify- (Amended L.N. 294 of 1982) (i) in relation to any description of goods, what treatment or process is to be regarded for the purposes of this Ordinance as resulting or not resulting in a permanent and substantial change in shape, nature, form or utility of the basic materials used in their manufacture; (ii) in relation to any description of goods different parts of which were manufactured or produced in different countries, or of goods assembled in a country different from that in which their parts were manufactured or produced, in which of those countries the goods are to be regarded for the purposes of this Ordinance as having been manufactured or produced. [cf. 1968 c. 29 s. 36 U.K.] (c) This subsection shall not apply to goods which are the subject of a notice published under subsection (2A). (Added 96 of 1991 s. 2) (2A) The Director-General of Trade and Industry may by notice in the Gazette specify in relation to any description of goods (being goods that are subject to a scheme of import or export control specified in the notice) the place in which the goods are to be regarded for the purposes of this Ordinance as having been manufactured or produced, and any such goods shall, for the purposes of this Ordinance, be deemed to have been manufactured or produced in such place. (Added 96 of 1991 s. 2. Amended L.N. 173 of 2000) (3) For the purposes of this Ordinance, a trade description or statement published in any newspaper, book or periodical or in any film or sound or television broadcast shall not be deemed to be a trade description applied or statement made in the course of a trade or business unless it is or forms part of an advertisement. [cf. 1968 c. 29 s. 39(2) U.K.] "advertisement" (宣傳品) "authorized officer" (獲授權人員) "Commissioner" (關長) "Convention country" (公約國家) "false trade description" (虛假商品說明) "forged trade mark" (偽造商標) "goods" (貨品) "goods in transit" (過境貨品) "import" (進口) "infringing goods" (侵犯權利貨品) "mark" (標記) "premises" (處所) "trade description" (商品說明) "trade mark" (商標) TRADE DESCRIPTIONS ORDINANCE - SECT 2 Interpretation VerDate:01/07/2000 Adaptation amendments retroactively made - see 65 of 2000 s. 3 (1) In this Ordinance, unless the context otherwise requires- "advertisement" (宣傳品) includes a catalogue, a circular and a price list; "authorized officer" (獲授權人員) means a public officer appointed under section 14; "Commissioner" (關長) means the Commissioner of Customs and Excise and any Deputy or Assistant Commissioner of Customs and Excise; (Added L.N. 294 of 1982. Amended 65 of 2000 s. 3) "Convention country" (公約國家) has the meaning assigned to it by section 13A(6) of the Trade Marks Ordinance (Cap 43); "false trade description" (虛假商品說明) means- (a) a trade description which is false to a material degree; (b) a trade description which, though not false, is misleading, that is to say, likely to be taken for such an indication of any of the matters specified in the definition of "trade description" as would be false to a material degree; (c) anything which, though not a trade description, is likely to be taken for an indication of any of the matters specified in the definition of "trade description" and, as such an indication, would be false to a material degree; (d) a false indication, or anything likely to be taken as an indication which would be false, that any goods comply with a standard specified or recognized by any person or implied by the approval of any person if there is no such person or no standard so specified, recognized or implied; or (e) a false indication, or anything likely to be taken as an indication which would be false, that any goods of any class or type- (i) being goods in respect of which duty is payable under the laws of Hong Kong, are supplied free of the duty so payable in respect of that class or type of goods; or (Amended L.N. 272 of 1990) (ii) not being goods in respect of which duty is payable under the laws of Hong Kong, are supplied free of the duty so payable; [cf. 1968 c. 29 s. 3 U.K.] "goods" (貨品) includes vessel and aircraft, things attached to land and growing crops; "goods in transit" (過境貨品) means goods which- (a) are brought into Hong Kong solely for the purpose of taking them out of Hong Kong; and (b) remain at all times in or on the vessel or aircraft in or on which they are brought into Hong Kong; (Amended 43 of 1996 s. 2) "import" (進口) means to bring, or cause to be brought, into Hong Kong; "premises" (處所) includes any place and any stall, vehicle, vessel or aircraft; "trade description" (商品說明) means an indication, direct or indirect, and by whatever means given, of any of the following matters with respect to any goods or parts of goods, that is to say- (a) quantity (which includes length, width, height, area, volume, capacity, weight and number), size or gauge; (b) method of manufacture, production, processing or reconditioning; (c) composition; (d) fitness for purpose, strength, performance, behaviour or accuracy; (e) any physical characteristics not included in the preceding paragraphs; (f) testing by any person and results thereof, (g) approval by any person or conformity with a type approved by any person; (h) place or date of manufacture, production, processing or reconditioning; (i) person by whom manufactured, produced, processed or reconditioned; (j) other history, including previous ownership or use; [cf. 1968 c. 29 s. 2(1) U.K.] "trade mark" (商標) means- (a) a trade mark relating to goods registered in Hong Kong under the Trade Marks Ordinance (Cap 43); (Amended 44 of 1991 s. 57) (aa) a certification trade mark in respect of goods registered in Hong Kong under the Trade Marks Ordinance (Cap 43); (Added 11 of 1996 s. 12) (b) (Repealed 65 of 2000 s. 3) (c) a trade mark- (i) registered, or in respect of which an application for registration has been made, in a British territory, in a Convention country or in China (other than in Hong Kong); and (ii) capable of registration in Hong Kong under the Trade Marks Ordinance (Cap 43) as a trade mark relating to goods; and (Amended 44 of 1991 s. 57) (iii) in respect of which a period of 6 months has not expired since the date of the application for the registration thereof in a British territory, in a Convention country or in China (other than in Hong Kong). (Amended 65 of 2000 s. 3) (2) (a) For the purposes of this Ordinance, goods shall be deemed to have been- (i) manufactured in the country in which they last underwent a treatment or process which changed permanently and substantially the shape, nature, form or utility of the basic materials used in their manufacture; or (ii) produced in the country in which they were wholly grown or mined. (b) The Commissioner may by order specify- (Amended L.N. 294 of 1982) (i) in relation to any description of goods, what treatment or process is to be regarded for the purposes of this Ordinance as resulting or not resulting in a permanent and substantial change in shape, nature, form or utility of the basic materials used in their manufacture; (ii) in relation to any description of goods different parts of which were manufactured or produced in different countries, or of goods assembled in a country different from that in which their parts were manufactured or produced, in which of those countries the goods are to be regarded for the purposes of this Ordinance as having been manufactured or produced. [cf. 1968 c. 29 s. 36 U.K.] (c) This subsection shall not apply to goods which are the subject of a notice published under subsection (2A). (Added 96 of 1991 s. 2) (2A) The Director-General of Trade and Industry may by notice in the Gazette specify in relation to any description of goods (being goods that are subject to a scheme of import or export control specified in the notice) the place in which the goods are to be regarded for the purposes of this Ordinance as having been manufactured or produced, and any such goods shall, for the purposes of this Ordinance, be deemed to have been manufactured or produced in such place. (Added 96 of 1991 s. 2. Amended L.N. 173 of 2000) (3) For the purposes of this Ordinance, a trade description or statement published in any newspaper, book or periodical or in any film or sound or television broadcast shall not be deemed to be a trade description applied or statement made in the course of a trade or business unless it is or forms part of an advertisement. [cf. 1968 c. 29 s. 39(2) U.K.] "advertisement" (宣傳品) "authorized officer" (獲授權人員) "Commissioner" (關長) "Convention country" (公約國家) "false trade description" (虛假商品說明) "goods" (貨品) "goods in transit" (過境貨品) "import" (進口) "premises" (處所) "trade description" (商品說明) "trade mark" (商標) TRADE DESCRIPTIONS ORDINANCE - SECT 2 Interpretation VerDate:01/07/1997 Adaptation amendments retroactively made - see 65 of 2000 s. 3 (1) In this Ordinance, unless the context otherwise requires- "advertisement" (宣傳品) includes a catalogue, a circular and a price list; "authorized officer" (獲授權人員) means a public officer appointed under section 14; "Commissioner" (關長) means the Commissioner of Customs and Excise and any Deputy or Assistant Commissioner of Customs and Excise; (Added L.N. 294 of 1982. Amended 65 of 2000 s. 3) "Convention country" (公約國家) has the meaning assigned to it by section 13A(6) of the Trade Marks Ordinance (Cap 43); "false trade description" (虛假商品說明) means- (a) a trade description which is false to a material degree; (b) a trade description which, though not false, is misleading, that is to say, likely to be taken for such an indication of any of the matters specified in the definition of "trade description" as would be false to a material degree; (c) anything which, though not a trade description, is likely to be taken for an indication of any of the matters specified in the definition of "trade description" and, as such an indication, would be false to a material degree; (d) a false indication, or anything likely to be taken as an indication which would be false, that any goods comply with a standard specified or recognized by any person or implied by the approval of any person if there is no such person or no standard so specified, recognized or implied; or (e) a false indication, or anything likely to be taken as an indication which would be false, that any goods of any class or type- (i) being goods in respect of which duty is payable under the laws of Hong Kong, are supplied free of the duty so payable in respect of that class or type of goods; or (Amended L.N. 272 of 1990) (ii) not being goods in respect of which duty is payable under the laws of Hong Kong, are supplied free of the duty so payable; [cf. 1968 c. 29 s. 3 U.K.] "goods" (貨品) includes vessel and aircraft, things attached to land and growing crops; "goods in transit" (過境貨品) means goods which- (a) are brought into Hong Kong solely for the purpose of taking them out of Hong Kong; and (b) remain at all times in or on the vessel or aircraft in or on which they are brought into Hong Kong; (Amended 43 of 1996 s. 2) "import" (進口) means to bring, or cause to be brought, into Hong Kong; "premises" (處所) includes any place and any stall, vehicle, vessel or aircraft; "trade description" (商品說明) means an indication, direct or indirect, and by whatever means given, of any of the following matters with respect to any goods or parts of goods, that is to say- (a) quantity (which includes length, width, height, area, volume, capacity, weight and number), size or gauge; (b) method of manufacture, production, processing or reconditioning; (c) composition; (d) fitness for purpose, strength, performance, behaviour or accuracy; (e) any physical characteristics not included in the preceding paragraphs; (f) testing by any person and results thereof, (g) approval by any person or conformity with a type approved by any person; (h) place or date of manufacture, production, processing or reconditioning; (i) person by whom manufactured, produced, processed or reconditioned; (j) other history, including previous ownership or use; [cf. 1968 c. 29 s. 2(1) U.K.] "trade mark" (商標) means- (a) a trade mark relating to goods registered in Hong Kong under the Trade Marks Ordinance (Cap 43); (Amended 44 of 1991 s. 57) (aa) a certification trade mark in respect of goods registered in Hong Kong under the Trade Marks Ordinance (Cap 43); (Added 11 of 1996 s. 12) (b) (Repealed 65 of 2000 s. 3) (c) a trade mark- (i) registered, or in respect of which an application for registration has been made, in a British territory, in a Convention country or in China (other than in Hong Kong); and (ii) capable of registration in Hong Kong under the Trade Marks Ordinance (Cap 43) as a trade mark relating to goods; and (Amended 44 of 1991 s. 57) (iii) in respect of which a period of 6 months has not expired since the date of the application for the registration thereof in a British territory, in a Convention country or in China (other than in Hong Kong). (Amended 65 of 2000 s. 3) (2) (a) For the purposes of this Ordinance, goods shall be deemed to have been- (i) manufactured in the country in which they last underwent a treatment or process which changed permanently and substantially the shape, nature, form or utility of the basic materials used in their manufacture; or (ii) produced in the country in which they were wholly grown or mined. (b) The Commissioner may by order specify- (Amended L.N. 294 of 1982) (i) in relation to any description of goods, what treatment or process is to be regarded for the purposes of this Ordinance as resulting or not resulting in a permanent and substantial change in shape, nature, form or utility of the basic materials used in their manufacture; (ii) in relation to any description of goods different parts of which were manufactured or produced in different countries, or of goods assembled in a country different from that in which their parts were manufactured or produced, in which of those countries the goods are to be regarded for the purposes of this Ordinance as having been manufactured or produced. [cf. 1968 c. 29 s. 36 U.K.] (c) This subsection shall not apply to goods which are the subject of a notice published under subsection (2A). (Added 96 of 1991 s. 2) (2A) The Director-General of Trade may by notice in the Gazette specify in relation to any description of goods (being goods that are subject to a scheme of import or export control specified in the notice) the place in which the goods are to be regarded for the purposes of this Ordinance as having been manufactured or produced, and any such goods shall, for the purposes of this Ordinance, be deemed to have been manufactured or produced in such place. (Added 96 of 1991 s. 2) (3) For the purposes of this Ordinance, a trade description or statement published in any newspaper, book or periodical or in any film or sound or television broadcast shall not be deemed to be a trade description applied or statement made in the course of a trade or business unless it is or forms part of an advertisement. [cf. 1968 c. 29 s. 39(2) U.K.] "advertisement" (宣傳品) "authorized officer" (獲授權人員) "Commissioner" (關長) "Convention country" (公約國家) "false trade description" (虛假商品說明) "goods" (貨品) "goods in transit" (過境貨品) "import" (進口) "premises" (處所) "trade description" (商品說明) "trade mark" (商標) TRADE DESCRIPTIONS ORDINANCE - SECT 2 Interpretation VerDate:30/06/1997 (1) In this Ordinance, unless the context otherwise requires- "advertisement" (宣傳品) includes a catalogue, a circular and a price list; "authorized officer" (獲授權人員) means a public officer appointed under section 14; "Commissioner" (總監) means the Commissioner of Customs and Excise and any Deputy or Assistant Commissioner of Customs and Excise; (Added L.N. 294 of 1982) "Convention country" (公約國家) has the meaning assigned to it by section 13A(6) of the Trade Marks Ordinance (Cap 43); "false trade description" (虛假商品說明) means- (a) a trade description which is false to a material degree; (b) a trade description which, though not false, is misleading, that is to say, likely to be taken for such an indication of any of the matters specified in the definition of "trade description" as would be false to a material degree; (c) anything which, though not a trade description, is likely to be taken for an indication of any of the matters specified in the definition of "trade description" and, as such an indication, would be false to a material degree; (d) a false indication, or anything likely to be taken as an indication which would be false, that any goods comply with a standard specified or recognized by any person or implied by the approval of any person if there is no such person or no standard so specified, recognized or implied; or (e) a false indication, or anything likely to be taken as an indication which would be false, that any goods of any class or type- (i) being goods in respect of which duty is payable under the laws of Hong Kong, are supplied free of the duty so payable in respect of that class or type of goods; or (Amended L.N. 272 of 1990) (ii) not being goods in respect of which duty is payable under the laws of Hong Kong, are supplied free of the duty so payable; [cf. 1968 c. 29 s. 3 U.K.] "goods" (貨品) includes vessel and aircraft, things attached to land and growing crops; "goods in transit" (過境貨品) means goods which- (a) are brought into Hong Kong solely for the purpose of taking them out of Hong Kong; and (b) remain at all times in or on the vessel or aircraft in or on which they are brought into Hong Kong; (Amended 43 of 1996 s. 2) "import" (進口) means to bring, or cause to be brought, into Hong Kong; "premises" (處所) includes any place and any stall, vehicle, vessel or aircraft; "trade description" (商品說明) means an indication, direct or indirect, and by whatever means given, of any of the following matters with respect to any goods or parts of goods, that is to say- (a) quantity (which includes length, width, height, area, volume, capacity, weight and number), size or gauge; (b) method of manufacture, production, processing or reconditioning; (c) composition; (d) fitness for purpose, strength, performance, behaviour or accuracy; (e) any physical characteristics not included in the preceding paragraphs; (f) testing by any person and results thereof, (g) approval by any person or conformity with a type approved by any person; (h) place or date of manufacture, production, processing or reconditioning; (i) person by whom manufactured, produced, processed or reconditioned; (j) other history, including previous ownership or use; [cf. 1968 c. 29 s. 2(1) U.K.] "trade mark" (商標) means- (a) a trade mark relating to goods registered in Hong Kong under the Trade Marks Ordinance (Cap 43); (Amended 44 of 1991 s. 57) (aa) a certification trade mark in respect of goods registered in Hong Kong under the Trade Marks Ordinance (Cap 43); (Added 11 of 1996 s. 12) (b) a trade mark registered in the register of trade marks kept under or preserved by the Trade Marks Act 1938 (1938 c. 22 U.K.); (c) a trade mark- (i) registered, or in respect of which an application for registration has been made, in a British territory or a Convention country; and (ii) capable of registration in Hong Kong under the Trade Marks Ordinance (Cap 43) as a trade mark relating to goods; and (Amended 44 of 1991 s. 57) (iii) in respect of which a period of 6 months has not expired since the date of the application for the registration thereof in a British territory or a Convention country. (2) (a) For the purposes of this Ordinance, goods shall be deemed to have been- (i) manufactured in the country in which they last underwent a treatment or process which changed permanently and substantially the shape, nature, form or utility of the basic materials used in their manufacture; or (ii) produced in the country in which they were wholly grown or mined. (b) The Commissioner may by order specify- (Amended L.N. 294 of 1982) (i) in relation to any description of goods, what treatment or process is to be regarded for the purposes of this Ordinance as resulting or not resulting in a permanent and substantial change in shape, nature, form or utility of the basic materials used in their manufacture; (ii) in relation to any description of goods different parts of which were manufactured or produced in different countries, or of goods assembled in a country different from that in which their parts were manufactured or produced, in which of those countries the goods are to be regarded for the purposes of this Ordinance as having been manufactured or produced. [cf. 1968 c. 29 s. 36 U.K.] (c) This subsection shall not apply to goods which are the subject of a notice published under subsection (2A). (Added 96 of 1991 s. 2) (2A) The Director-General of Trade may by notice in the Gazette specify in relation to any description of goods (being goods that are subject to a scheme of import or export control specified in the notice) the place in which the goods are to be regarded for the purposes of this Ordinance as having been manufactured or produced, and any such goods shall, for the purposes of this Ordinance, be deemed to have been manufactured or produced in such place. (Added 96 of 1991 s. 2) (3) For the purposes of this Ordinance, a trade description or statement published in any newspaper, book or periodical or in any film or sound or television broadcast shall not be deemed to be a trade description applied or statement made in the course of a trade or business unless it is or forms part of an advertisement. [cf. 1968 c. 29 s. 39(2) U.K.] "advertisement" (宣傳品) "authorized officer" (獲授權人員) "Commissioner" (總監) "Convention country" (公約國家) "false trade description" (虛假商品說明) "goods" (貨品) "goods in transit" (過境貨品) "import" (進口) "premises" (處所) "trade description" (商品說明) "trade mark" (商標) TRADE DESCRIPTIONS ORDINANCE - SECT 3 Special provisions applicable to goldware VerDate:30/06/1997 (1) Notwithstanding the definition of "false trade description" in section 2, a trade description which indicates the fineness (whether in parts per thousand or in carats) of gold shall be a false trade description if that indication is false to any extend or degree, except by understating the fineness. [cf. 1973 c. 43 s. 1(4) U.K.] (2) For the purpose of construing descriptions relating to the fineness of gold- (a) a description indicating that an article, or the metal in an article, is so many carats shall be presumed to be an indication that the article or metal is of gold, and that its fineness is that specified in the table in the Schedule for that number of carats; (b) paragraph (a) shall not apply if (as in a case where the article is a precious stone) the word "carat" is used as a measure of weight for precious stones, and not as a measure of fineness. [cf. 1973 c. 43 Sch. 1 U.K.] (3) Notwithstanding the definition of "false trade description" in section 2- (a) a trade description which indicates that any article (other than an article of pure gold) is of gold shall be a false trade description unless the article consists solely of gold alloy and- (i) contains not less than 8 carats of gold; or (ii) bears a mark clearly indicating in carats, by number or by number and the letters "k", "c" or "ct", the fineness of the gold content; or (iii) bears a mark clearly indicating in parts per thousand the fineness of the gold content; and (b) a mark calculated to be taken as an indication of the fineness of gold of an article- (i) which is plated with or enclosed in gold alloy or gilded; or (Amended L.N. 272 of 1990) (ii) to which gold alloy is soldered or otherwise affixed, shall be a false trade description unless it is manifest from the appearance of the article that the mark refers solely to the part of the article which consists of gold alloy. (4) Any number of 1 or 2 digits on an article which indicates or purports to indicate, or is likely to be taken as an indication of, the fineness in carats of its gold content shall be a false trade description unless the article contains at least the same proportion of pure gold as the number bears to 24. (5) Any number of 3 digits on an article which indicates or purports to indicate, or is likely to be taken as an indication of, the fineness in number of parts per thousand of its gold content shall be a false trade description unless the article contains gold of such a standard of fineness. (6) For the purposes of this section "fineness" (純度) means the proportion of pure gold in accordance with subsection (4) or the number of parts by weight of gold in accordance with subsection (5) as the case may require. (6) For the purposes of this section "fineness" (純度) means the proportion of pure gold in accordance with subsection (4) or the number of parts by weight of gold in accordance with subsection (5) as the case may require. TRADE DESCRIPTIONS ORDINANCE - SECT 4 Marking orders VerDate:01/07/1997 Adaptation amendments retroactively made - see 65 of 2000 s. 3 (1) The Chief Executive in Council may by order require that any goods specified in the order shall be marked with or accompanied by any information (whether or not amounting to or including a trade description) or instruction relating to the goods and, subject to the provisions of this Ordinance, impose requirements for securing that the goods are so marked or accompanied, and regulate or prohibit the supply of goods with respect to which the requirements are not complied with; and the requirements may extend to the form and manner in which the information or instruction is to be given. (Amended 65 of 2000 s. 3) (2) Where an order under this section is in force with respect to goods of any description, any person who, in the course of any trade or business, supplies or offers to supply goods of that description in contravention of the order commits an offence. (Amended L.N. 272 of 1990) (3) An order under this section may make different provision for different circumstances and may, in the case of goods supplied in circumstances where the information or instruction required by the order would not be conveyed until after delivery, required the whole or part thereof to be also displayed near the goods. [cf. 1968 c. 29 s. 8 U.K.] TRADE DESCRIPTIONS ORDINANCE - SECT 4 Marking orders VerDate:30/06/1997 (1) The Governor in Council may by order require that any goods specified in the order shall be marked with or accompanied by any information (whether or not amounting to or including a trade description) or instruction relating to the goods and, subject to the provisions of this Ordinance, impose requirements for securing that the goods are so marked or accompanied, and regulate or prohibit the supply of goods with respect to which the requirements are not complied with; and the requirements may extend to the form and manner in which the information or instruction is to be given. (2) Where an order under this section is in force with respect to goods of any description, any person who, in the course of any trade or business, supplies or offers to supply goods of that description in contravention of the order commits an offence. (Amended L.N. 272 of 1990) (3) An order under this section may make different provision for different circumstances and may, in the case of goods supplied in circumstances where the information or instruction required by the order would not be conveyed until after delivery, required the whole or part thereof to be also displayed near the goods. [cf. 1968 c. 29 s. 8 U.K.] TRADE DESCRIPTIONS ORDINANCE - SECT 5 Information to be given in advertisements VerDate:01/07/1997 Adaptation amendments retroactively made - see 65 of 2000 s. 3 (1) The Chief Executive in Council may by order require that any description of advertisements of any goods specified in the order shall contain or refer to information (whether or not amounting to or including a trade description) relating to such goods and subject to the provisions of this Ordinance impose requirements as to the inclusion of that information or of an indication of the means by which it may be obtained. (Amended 65 of 2000 s. 3) (2) An order under this section may specify the form and manner in which any such information or indication is to be included in advertisements of any description and may make different provision for different circumstances. (3) Where an advertisement of any goods to be supplied in the course of any trade or business fails to comply with any requirement imposed under this section, any person who publishes the advertisement commits an offence. [cf. 1968 c. 29 s. 9 U.K.] TRADE DESCRIPTIONS ORDINANCE - SECT 5 Information to be given in advertisements VerDate:30/06/1997 (1) The Governor in Council may by order require that any description of advertisements of any goods specified in the order shall contain or refer to information (whether or not amounting to or including a trade description) relating to such goods and subject to the provisions of this Ordinance impose requirements as to the inclusion of that information or of an indication of the means by which it may be obtained. (2) An order under this section may specify the form and manner in which any such information or indication is to be included in advertisements of any description and may make different provision for different circumstances. (3) Where an advertisement of any goods to be supplied in the course of any trade or business fails to comply with any requirement imposed under this section, any person who publishes the advertisement commits an offence. [cf. 1968 c. 29 s. 9 U.K.] TRADE DESCRIPTIONS ORDINANCE - SECT 6 Applying a trade description, trade mark or mark to goods VerDate:30/06/1997 PART II FALSE TRADE DESCRIPTIONS OR REPRESENTATIONS AND FORGED TRADE MARKS (1) A person applies a trade description or trade mark or mark to goods if he- (a) affixes or annexes it to or in any manner marks it on or incorporates it with- (i) the goods themselves; or (ii) anything in, on or with which the goods are supplied; (b) places the goods in, on or with anything which the trade description or trade mark or mark has been affixed or annexed to, marked on or incorporated with, or places any such thing with the goods; (c) uses the trade description or trade mark or mark in any manner likely to be taken as referring to the goods; or (d) makes in any affidavit, declaration or writing any statement to the effect that a trade description or trade mark or mark is applicable to the goods. (2) An oral statement may amount to the use of a trade description or trade mark or mark. (3) Where goods are supplied in pursuance of a request in which a trade description or trade mark or mark is used and the circumstances are such as to make it reasonable to infer that the goods are supplied as goods corresponding to that trade description or trade mark or mark, the person supplying the goods shall be deemed to have applied that trade description or trade mark or mark to the goods. [cf. 1968 c. 29 s. 4 U.K.] TRADE DESCRIPTIONS ORDINANCE - SECT 7 Offences in respect of trade descriptions VerDate:30/06/1997 (1) Subject to the provisions of this Ordinance, any person who- (a) in the course of any trade or business- (i) applies a false trade description to any goods; or (ii) supplies or offers to supply any goods to which a false trade description is applied; or (b) has in his possession for sale or for any purpose of trade or manufacture any goods to which a false trade description is applied, commits an offence. (2) A person exposing goods for supply or having goods in his possession for supply shall be deemed to offer to supply them. (3) Subject to the provisions of this Ordinance any person who disposes of or has in his possession any die, block, machine, or other instrument for the purpose of making, or applying to goods a false trade description commits an offence unless he proves that he acted without intent to defraud. (Amended L.N. 272 of 1990) [cf. 1968 c. 29 s. 1 U.K.] TRADE DESCRIPTIONS ORDINANCE - SECT 8 Trade descriptions used in advertisements VerDate:30/06/1997 (1) The following provisions of this section shall have effect where in an advertisement a trade description is used in relation to any class of goods. (2) The trade description shall be taken as referring to all goods of the class, whether or not in existence at the time the advertisement is published- (a) for the purpose of determining whether an offence has been committed under section 7(1)(a)(i); and (b) where goods of the class are supplied or offered to be supplied by a person publishing or displaying the advertisement, also for the purpose of determining whether an offence has been committed under section 7(1)(a)(ii). (3) In determining for the purposes of this section whether any goods are of a class to which a trade description used in an advertisement relates, regard shall be had not only to the form and content of the advertisement but also to the time, place, manner and frequency of its publication and all other matters making it likely or unlikely that a person to whom the goods are supplied would think of the goods as belonging to the class in relation to which the trade description is used in the advertisement. [cf. 1968 c. 29 s. 5 U.K.] TRADE DESCRIPTIONS ORDINANCE - SECT 9 Offences in respect of trade marks VerDate:04/04/2003 (1) Subject to the provisions of this Ordinance, any person who- (a) forges any trade mark; (b) falsely applies to any goods any trade mark or any mark so nearly resembling a trade mark as to be calculated to deceive; (c) makes any die, block, machine or other instrument for the purpose of forging, or of being used for forging, a trade mark; (d) disposes of or has in his possession any die, block, machine or other instrument for the purpose of forging a trade mark; or (e) causes to be done anything referred to in paragraph (a), (b), (c) or (d), commits an offence unless he proves that he acted without intent to defraud. (2) Subject to the provisions of this Ordinance, any person who sells or exposes or has in his possession for sale or for any purpose of trade or manufacture, any goods to which any forged trade mark is applied, or to which any trade mark or mark so nearly resembling a trade mark as to be calculated to deceive is falsely applied, commits an offence. (3) For the purposes of this section but subject to subsection (3A), a person shall be deemed- (a) to forge a trade mark who either- (i) without the consent of the owner of the trade mark, makes that trade mark or a mark so nearly resembling that trade mark as to be calculated to deceive; or (ii) falsifies any genuine trade mark, whether by alteration, addition, effacement or otherwise; (b) falsely to apply to goods a trade mark who without the consent of the owner of that trade mark applies that trade mark to goods, and "forged trade mark" (偽造商標) shall be construed accordingly. (Replaced 35 of 2000 s. 98) (3A) A person shall not be deemed under subsection (3) to forge a trade mark, or falsely to apply to goods a trade mark, if the person proves- (a) that he acted without infringing any right of the owner of the trade mark conferred by the Trade Marks Ordinance (Cap 559); (b) that the trade mark or mark was not used by him in the course of any trade or business as a trade mark in relation to goods; (c) that the use made by him of the trade mark or mark is not a use in relation to goods for which the trade mark is registered and is not a use in relation to goods similar to those for which it is registered; or (d) that the use made by him of the trade mark or mark is a use to which the rights of the owner of the trade mark do not extend by reason of a disclaimer, limitation or condition to which the trade mark is subject. (Added 35 of 2000 s. 98) (4) In any prosecution for an offence under subsection (1)(a) or (b) the burden of proving the consent of the owner shall lie on the defendant. (Amended 35 of 2000 s. 98) "forged trade mark" (偽造商標) TRADE DESCRIPTIONS ORDINANCE - SECT 9 Offences in respect of trade marks VerDate:30/06/1997 (1) Subject to the provisions of this Ordinance, any person who- (a) forges any trade mark; (b) falsely applies to any goods any trade mark or any mark so nearly resembling a trade mark as to be calculated to deceive; (c) makes any die, block, machine or other instrument for the purpose of forging, or of being used for forging, a trade mark; (d) disposes of or has in his possession any die, block, machine or other instrument for the purpose of forging a trade mark; or (e) causes to be done anything referred to in paragraph (a), (b), (c) or (d), commits an offence unless he proves that he acted without intent to defraud. (2) Subject to the provisions of this Ordinance, any person who sells or exposes or has in his possession for sale or for any purpose of trade or manufacture, any goods to which any forged trade mark is applied, or to which any trade mark or mark so nearly resembling a trade mark as to be calculated to deceive is falsely applied, commits an offence. (3) For the purposes of this section, a person shall be deemed- (a) to forge a trade mark who either- (i) without the assent of the proprietor of the trade mark, makes that trade mark or a mark so nearly resembling that trade mark as to be calculated to deceive; or (ii) falsifies any genuine trade mark, whether by alteration, addition, effacement or otherwise; (b) falsely to apply to goods a trade mark who without the assent of the proprietor of that trade mark applies that trade mark to goods, (Amended L.N. 346 of 1982) unless he proves that he acted without infringing the right of the proprietor of the trade mark conferred by section 27 or 67 of the Trade Marks Ordinance (Cap 43), and "forged trade mark" (偽造商標) shall be construed accordingly. (Amended 11 of 1996 s. 13) (4) In any prosecution for an offence under subsection (1)(a) or (b) the burden of proving the assent of the proprietor shall lie on the defendant. "forged trade mark" (偽造商標) TRADE DESCRIPTIONS ORDINANCE - SECT 10 (Repealed 65 of 2000 s. 3) VerDate:01/07/1997 Adaptation amendments retroactively made - see 65 of 2000 s. 3 TRADE DESCRIPTIONS ORDINANCE - SECT 10 False representations as to Royal approval or awards, etc. VerDate:30/06/1997 (1) Subject to the provisions of this Ordinance, any person who, in the course of any trade or business, gives, by whatever means, any false indication, direct or indirect, that any goods supplied by him are or are of a kind supplied to or approved by Her Majesty or any member of the Royal Family commits an offence. (2) Subject to the provisions of this Ordinance, any person who, in the course of any trade or business, uses- (a) without the authority of Her Majesty, any device or emblem signifying the Queen's Award to Industry or anything so nearly resembling such a device or emblem as to be likely to deceive; or (b) without the authority of the Governor, any device or emblem signifying the Governor's Award for Hong Kong Design or anything so nearly resembling such a device or emblem as to be likely to deceive, commits an offence. [cf. 1968 c. 29 s. 12 U.K.] TRADE DESCRIPTIONS ORDINANCE - SECT 11 False representations as to supply of goods VerDate:30/06/1997 Subject to the provisions of this Ordinance, any person who, in the course of any trade or business, gives, by whatever means, any false indication, direct or indirect, that any goods supplied by him are of a kind supplied to any person, commits an offence. [cf. 1968 c. 29 s. 13 U.K.] TRADE DESCRIPTIONS ORDINANCE - SECT 12 Prohibited import and export of certain goods VerDate:04/04/2003 (1) Subject to section 13, no person shall import or export any goods to which a false trade description or forged trade mark is applied. (Amended 35 of 2000 s. 98) (2) Any person who imports or exports any goods contrary to subsection (1) commits an offence unless he proves that- (a) he did not know, had no reason to suspect and could not with reasonable diligence have found out that the goods are goods to which a false trade description or forged trade mark is applied; or (b) the goods are not intended for trade or business. (3) This section shall not apply to any goods in transit. TRADE DESCRIPTIONS ORDINANCE - SECT 12 Prohibited import and export of certain goods VerDate:30/06/1997 (1) Subject to section 13, no person shall import or export any goods to which a false trade description or forged trade mark, which expression shall be construed in accordance with section 9(3), is applied. (2) Any person who imports or exports any goods contrary to subsection (1) commits an offence unless he proves that- (a) he did not know, had no reason to suspect and could not with reasonable diligence have found out that the goods are goods to which a false trade description or forged trade mark is applied; or (b) the goods are not intended for trade or business. (3) This section shall not apply to any goods in transit. TRADE DESCRIPTIONS ORDINANCE - SECT 13 Power to exempt goods sold for export VerDate:01/07/1997 Adaptation amendments retroactively made - see 65 of 2000 s. 3 In relation to goods which are intended for despatch to a destination outside Hong Kong, section 7 shall apply as if there were omitted from the matters included in the definition of "trade description" in section 2 those specified in paragraph (a) thereof, and, if the Chief Executive by order specifies any other of those matters for the purposes of this section with respect to any description of goods, section 7 shall apply, in relation to goods of that description which are intended for despatch to a destination outside Hong Kong, as if the matters so specified were also omitted from those included in the definition of "trade description" in section 2. (Amended 65 of 2000 s. 3) [cf. 1968 c. 29 s. 32 U.K.] TRADE DESCRIPTIONS ORDINANCE - SECT 13 Power to exempt goods sold for export VerDate:30/06/1997 In relation to goods which are intended for despatch to a destination outside Hong Kong, section 7 shall apply as if there were omitted from the matters included in the definition of "trade description" in section 2 those specified in paragraph (a) thereof, and, if the Governor by order specifies any other of those matters for the purposes of this section with respect to any description of goods, section 7 shall apply, in relation to goods of that description which are intended for despatch to a destination outside Hong Kong, as if the matters so specified were also omitted from those included in the definition of "trade description" in section 2. [cf. 1968 c. 29 s. 32 U.K.] TRADE DESCRIPTIONS ORDINANCE - SECT 14 Appointment of authorized officers VerDate:30/06/1997 PART III ENFORCEMENT (1) The Commissioner may appoint any public officer to be an authorized officer for the purposes of this Ordinance. (2) The Commissioner may exercise any of the powers conferred on an authorized officer under this Ordinance. (Amended L.N. 294 of 1982) TRADE DESCRIPTIONS ORDINANCE - SECT 15 Power to enter premises and inspect and seize goods and documents VerDate:30/06/1997 (1) An authorized officer may, on production, if required, of evidence of his appointment- (a) make such purchases of goods as may appear expedient for the purpose of determining whether or not the provisions of this Ordinance are being complied with; (b) for the purpose of ascertaining whether any offence under this Ordinance has been or is being committed, inspect any goods and enter any premises other than domestic premises; (c) if he has reasonable cause to suspect that an offence under this Ordinance has been committed, seize or detain any goods for the purpose of ascertaining, by testing or otherwise, whether the offence has been committed; (d) if he has reasonable cause to suspect that an offence under this Ordinance has been committed and for the purpose of ascertaining whether it has been committed, require any person carrying on a trade or business or employed in connection with a trade or business to produce any books or documents relating to the trade or business and may take copies of, or of any entry in, any such book or document; (e) in the case of any premises, vehicle, vessel (other than a ship of war) or aircraft (other than a military aircraft) in which he has reasonable cause to suspect that there are goods in respect of which an offence under this Ordinance has been or is being committed- (i) subject to section 16, enter and search such premises; (ii) stop and search such vehicle; or (iii) stop, board and search such vessel or aircraft; (f) seize, remove or detain- (i) any goods in respect of which he has reasonable cause to suspect an offence under this Ordinance has been or is being committed; and (ii) anything which he has reason to believe may be required as evidence in proceedings for an offence under this Ordinance. (2) An authorized officer may- (a) break open any container or open any vending machine for the purpose of exercising his powers under subsection (1)(f) to seize goods; (b) break open any outer or inner door of any place which he is empowered or authorized by or under this Ordinance to enter and search; (c) forcibly board any vessel or aircraft which he is empowered by this Ordinance to stop, board or search; (d) remove by force any person or thing obstructing him in the exercise of any power conferred on him by this Ordinance; (e) detain any person found in any premises which he is empowered or authorized by or under this Ordinance to search until such place has been so searched; (f) detain any vessel or aircraft which he is empowered by this Ordinance to stop, board and search, and prevent any person from approaching or boarding such vessel or aircraft until it has been so searched; (g) detain any vehicle which he is empowered by or under this Ordinance to stop and search until it has been so searched. [cf. 1968 c. 29 ss. 27 & 28 U.K.] TRADE DESCRIPTIONS ORDINANCE - SECT 16 Restrictions on the entry and search of domestic premises VerDate:30/06/1997 (1) No domestic premises shall be entered and searched by an authorized officer unless- (a) a magistrate has issued a warrant under subsection (2); or (b) the Commissioner has given an authorization under subsection (3). (Amended L.N. 294 of 1982) (2) A magistrate may, if he is satisfied by information on oath that there is reasonable ground for suspecting that there is in any domestic premises any goods or thing which may be seized, removed or detained under section 15(1)(f), issue a warrant authorizing an authorized officer to enter and search the premises. (3) The Commissioner may, if he is satisfied that there is reasonable ground for suspecting- (Amended L.N. 294 of 1982) (a) that there is in any domestic premises any goods or thing which may be seized, removed or detained under section 15(1)(f); and (b) that unless the premises are entered and searched immediately such goods or thing are likely to be removed from the premises, authorize in writing an authorized officer to enter and search the premises. (4) An authorized officer authorized under subsection (2) or (3) to enter and search any domestic premises may take with him such other persons and such equipment as may appear to him to be necessary. TRADE DESCRIPTIONS ORDINANCE - SECT 16A Power to detain goods by locking or sealing premises or container VerDate:30/06/1997 (1) An authorized officer may, for the purpose of detaining, under section 15- (a) any goods in respect of which he has reasonable cause to suspect that an offence under this Ordinance has been or is being committed; and (b) anything which he has reason to believe may be required as evidence in proceedings for an offence under this Ordinance, place a lock or seal on any premises or container in which the goods or things are. (2) If a lock or seal is placed on any premises or container under subsection (1), the period for which the lock or seal is placed shall not exceed 7 days without the consent in writing of the owner of the premises or container, or his authorized agent. (3) If an authorized officer has placed a lock or seal on any premises or container under subsection (1), any person who breaks or interferes with such lock or seal commits an offence unless he does so- (a) in the bona fide belief that it is necessary immediately to break or interfere with the lock or seal in order to prevent- (i) injury being suffered by any person; or (ii) damage being incurred to any such premises or container, as the case may be; or (b) in the exercise of his duties as a public officer. (Added 2 of 1987 s. 2) TRADE DESCRIPTIONS ORDINANCE - SECT 16B Powers of arrest of authorized officers VerDate:30/06/1997 (1) An authorized officer may, subject to subsection (2), arrest or detain for further enquiries without warrant any person whom he reasonably suspects of having committed any offence under this Ordinance. (2) An authorized officer who arrests any person under subsection (1) shall forthwith take the person to a police station or, if further enquiries are necessary, first to an office of the Customs and Excise Department and then to a police station, there to be dealt with in accordance with the provisions of the Police Force Ordinance (Cap 232): Provided that in no case shall any person be detained for more than 48 hours without being charged and brought before a magistrate. (3) If any person forcibly resists or attempts to evade arrest under this section, the authorized officer may use such force as is reasonably necessary to effect the arrest. (Added 2 of 1987 s. 2) TRADE DESCRIPTIONS ORDINANCE - SECT 16C Disclosure of information, etc. VerDate:04/04/2003 (1) Where goods seized or detained under section 15 are, or are reasonably suspected by the Commissioner to be, goods to which a forged trade mark is applied, or to which a trade mark or mark so nearly resembling a trade mark as to be calculated to deceive is falsely applied, the Commissioner shall, wherever reasonably practicable, notify the owner of the trade mark or his authorized agent of the seizure or detention, as the case may be. (Amended 35 of 2000 s. 98) (2) In the circumstances specified in subsection (1), the Commissioner may disclose to the owner of the trade mark or to his authorized agent- (Amended 35 of 2000 s. 98) (a) the time, and the address of the place, of seizure or detention of the goods; (b) the name and address of the person from whom the goods have been seized or detained; (c) the nature and quantity of the goods seized or detained; (d) any statement made to the Commissioner by any person in connection with the seizure or detention, either with the prior consent in writing of that person or without such consent where that person is dead or cannot after reasonable enquiries by the Commissioner as to his whereabouts be found by the Commissioner; (e) any other information or document relating to the goods seized or detained which the Commissioner thinks fit to disclose. (3) The owner of a trade mark or his authorized agent- (Amended 35 of 2000 s. 98) (a) where he seeks disclosure of any information or document that is not referred to in subsection (2); or (b) where information or a document that is referred to in subsection (2) is not disclosed by the Commissioner, may apply to the Court of First Instance for an order requiring the Commissioner to disclose such information or document and the Court of First Instance may on such an application make such order for disclosure as it deems fit. (Amended 25 of 1998 s. 2) (4) An application under subsection (3) may be begun by motion with previous notice to the Commissioner. (Added 2 of 1987 s. 2) TRADE DESCRIPTIONS ORDINANCE - SECT 16C Disclosure of information, etc. VerDate:01/07/1997 Amendments retroactively made - see 25 of 1998 s. 2 (1) Where goods seized or detained under section 15 are, or are reasonably suspected by the Commissioner to be, goods to which a forged trade mark is applied, or to which a trade mark or mark so nearly resembling a trade mark as to be calculated to deceive is falsely applied, the Commissioner shall, wherever reasonably practicable, notify the proprietor of the trade mark or his authorized agent of the seizure or detention, as the case may be. (2) In the circumstances specified in subsection (1), the Commissioner may disclose to the proprietor of the trade mark or to his authorized agent- (a) the time, and the address of the place, of seizure or detention of the goods; (b) the name and address of the person from whom the goods have been seized or detained; (c) the nature and quantity of the goods seized or detained; (d) any statement made to the Commissioner by any person in connection with the seizure or detention, either with the prior consent in writing of that person or without such consent where that person is dead or cannot after reasonable enquiries by the Commissioner as to his whereabouts be found by the Commissioner; (e) any other information or document relating to the goods seized or detained which the Commissioner thinks fit to disclose. (3) The proprietor of a trade mark or his authorized agent- (a) where he seeks disclosure of any information or document that is not referred to in subsection (2); or (b) where information or a document that is referred to in subsection (2) is not disclosed by the Commissioner, may apply to the Court of First Instance for an order requiring the Commissioner to disclose such information or document and the Court of First Instance may on such an application make such order for disclosure as it deems fit. (Amended 25 of 1998 s. 2) (4) An application under subsection (3) may be begun by motion with previous notice to the Commissioner. (Added 2 of 1987 s. 2) TRADE DESCRIPTIONS ORDINANCE - SECT 16C Disclosure of information, etc. VerDate:30/06/1997 (1) Where goods seized or detained under section 15 are, or are reasonably suspected by the Commissioner to be, goods to which a forged trade mark is applied, or to which a trade mark or mark so nearly resembling a trade mark as to be calculated to deceive is falsely applied, the Commissioner shall, wherever reasonably practicable, notify the proprietor of the trade mark or his authorized agent of the seizure or detention, as the case may be. (2) In the circumstances specified in subsection (1), the Commissioner may disclose to the proprietor of the trade mark or to his authorized agent- (a) the time, and the address of the place, of seizure or detention of the goods; (b) the name and address of the person from whom the goods have been seized or detained; (c) the nature and quantity of the goods seized or detained; (d) any statement made to the Commissioner by any person in connection with the seizure or detention, either with the prior consent in writing of that person or without such consent where that person is dead or cannot after reasonable enquiries by the Commissioner as to his whereabouts be found by the Commissioner; (e) any other information or document relating to the goods seized or detained which the Commissioner thinks fit to disclose. (3) The proprietor of a trade mark or his authorized agent- (a) where he seeks disclosure of any information or document that is not referred to in subsection (2); or (b) where information or a document that is referred to in subsection (2) is not disclosed by the Commissioner, may apply to the High Court for an order requiring the Commissioner to disclose such information or document and the High Court may on such an application make such order for disclosure as it deems fit. (4) An application under subsection (3) may be begun by motion with previous notice to the Commissioner. (Added 2 of 1987 s. 2) TRADE DESCRIPTIONS ORDINANCE - SECT 16D International co-operation VerDate:30/06/1997 The Commissioner may, for the purpose of promoting international co-operation in the protection of intellectual property rights, disclose information obtained in pursuance of this Ordinance to the customs authorities of any Convention country. (Added 11 of 1996 s. 14) TRADE DESCRIPTIONS ORDINANCE - SECT 17 Offences of obstruction and disclosure of information VerDate:01/07/1997 Amendments retroactively made - see 25 of 1998 s. 2 (1) Without prejudice to any other Ordinance, any person who- (a) wilfully obstructs an authorized officer in the exercise of his powers or the performance of his duties under this Ordinance; (b) wilfully fails to comply with any requirement properly made to him by any such authorized officer; or (c) without reasonable excuse fails to give such authorized officer any other assistance or information which the authorized officer may reasonably require of him for the purpose of the performance of the officer's functions under this Ordinance, (Amended L.N. 65 of 1986) commits an offence. (Amended L.N. 272 of 1990) (2) Subject to subsection (2A), any person who discloses to any other person- (Amended 2 of 1987 s. 3) (a) any information with respect to any manufacturing process or trade secret obtained by him in premises which he has entered by virtue of this Ordinance; or (b) any information obtained by him in pursuance of this Ordinance, commits an offence unless the disclosure was made- (i) in or for the purpose of the performance by him or any other person of functions under this Ordinance; or (ii) in the case of paragraph (b) under the direction or order of a court. (2A) A person does not commit an offence under subsection (2) by- (a) disclosing information under section 16C(1) or (2) or under an order of the Court of First Instance made under section 16C(3); (b) disclosing information under section 16D; or (c) disclosing information under section 30F(1) or under an order of the Court of First Instance made under section 30F(2). (Replaced 11 of 1996 s. 15. Amended 25 of 1998 s. 2) (3) Any person who, in giving any such information as is referred to in subsection (1)(c), makes any statement which he knows to be false commits an offence. (4) Subject to subsection (5), nothing in this section shall be taken to- (a) require a person to answer any question or give any information if to do so might incriminate that person or the wife or husband of that person; or (b) compel the production by a solicitor of a document containing a privileged communication made by or to him in that capacity or authorize the seizure of any such document in his possession. (5) A person shall not be excused, by reason that to do so may incriminate that person or the wife or husband of that person of an offence under this Ordinance- (a) from answering any question put to that person in any civil proceedings; (b) from complying with any order made in any such proceedings, but no statement or admission made by a person in answering a question put or complying with an order made shall, in proceedings for an offence under this Ordinance, be admissible in evidence against that person or (unless they married after the making of the statement or admission) against the wife or husband of that person. (Amended L.N. 123 of 1982) [cf. 1968 c. 29 s. 29 U.K.] TRADE DESCRIPTIONS ORDINANCE - SECT 17 Offences of obstruction and disclosure of information VerDate:30/06/1997 (1) Without prejudice to any other Ordinance, any person who- (a) wilfully obstructs an authorized officer in the exercise of his powers or the performance of his duties under this Ordinance; (b) wilfully fails to comply with any requirement properly made to him by any such authorized officer; or (c) without reasonable excuse fails to give such authorized officer any other assistance or information which the authorized officer may reasonably require of him for the purpose of the performance of the officer's functions under this Ordinance, (Amended L.N. 65 of 1986) commits an offence. (Amended L.N. 272 of 1990) (2) Subject to subsection (2A), any person who discloses to any other person- (Amended 2 of 1987 s. 3) (a) any information with respect to any manufacturing process or trade secret obtained by him in premises which he has entered by virtue of this Ordinance; or (b) any information obtained by him in pursuance of this Ordinance, commits an offence unless the disclosure was made- (i) in or for the purpose of the performance by him or any other person of functions under this Ordinance; or (ii) in the case of paragraph (b) under the direction or order of a court. (2A) A person does not commit an offence under subsection (2) by- (a) disclosing information under section 16C(1) or (2) or under an order of the High Court made under section 16C(3); (b) disclosing information under section 16D; or (c) disclosing information under section 30F(1) or under an order of the High Court made under section 30F(2). (Replaced 11 of 1996 s. 15) (3) Any person who, in giving any such information as is referred to in subsection (1)(c), makes any statement which he knows to be false commits an offence. (4) Subject to subsection (5), nothing in this section shall be taken to- (a) require a person to answer any question or give any information if to do so might incriminate that person or the wife or husband of that person; or (b) compel the production by a solicitor of a document containing a privileged communication made by or to him in that capacity or authorize the seizure of any such document in his possession. (5) A person shall not be excused, by reason that to do so may incriminate that person or the wife or husband of that person of an offence under this Ordinance- (a) from answering any question put to that person in any civil proceedings; (b) from complying with any order made in any such proceedings, but no statement or admission made by a person in answering a question put or complying with an order made shall, in proceedings for an offence under this Ordinance, be admissible in evidence against that person or (unless they married after the making of the statement or admission) against the wife or husband of that person. (Amended L.N. 123 of 1982) [cf. 1968 c. 29 s. 29 U.K.] TRADE DESCRIPTIONS ORDINANCE - SECT 18 Penalties VerDate:01/07/1997 Adaptation amendments retroactively made - see 65 of 2000 s. 3 (1) Any person who commits an offence under section 4, 5, 7, 9, 11 or 12 shall be liable- (Amended 65 of 2000 s. 3) (a) on conviction on indictment, to a fine of $500000 and to imprisonment for 5 years; and (b) on summary conviction, to a fine of $100000 and to imprisonment for 2 years. (1A) Any person who commits an offence under section 16A(3) shall be liable to a fine of $5000 and to imprisonment for 3 months. (Added 2 of 1987 s. 4) (2) Any person who commits an offence under section 17 shall be liable to a fine of $10000 and to imprisonment for 1 year. TRADE DESCRIPTIONS ORDINANCE - SECT 18 Penalties VerDate:30/06/1997 (1) Any person who commits an offence under section 4, 5, 7, 9, 10, 11 or 12 shall be liable- (a) on conviction on indictment, to a fine of $500000 and to imprisonment for 5 years; and (b) on summary conviction, to a fine of $100000 and to imprisonment for 2 years. (1A) Any person who commits an offence under section 16A(3) shall be liable to a fine of $5000 and to imprisonment for 3 months. (Added 2 of 1987 s. 4) (2) Any person who commits an offence under section 17 shall be liable to a fine of $10000 and to imprisonment for 1 year. TRADE DESCRIPTIONS ORDINANCE - SECT 19 Time limit for prosecutions VerDate:30/06/1997 No prosecution for an offence under this Ordinance shall be brought after- (a) the expiration of 3 years from the date of commission of the offence; or (b) the expiration of 1 year from the date of discovery of the offence by the prosecutor, whichever is the earlier. TRADE DESCRIPTIONS ORDINANCE - SECT 20 Offences by corporations VerDate:30/06/1997 Where a body corporate is convicted of an offence under this Ordinance, every person who, at the time of the commission of the offence, was a director, manager, secretary or other similar officer of the body corporate, or any person who was purporting to act in any such capacity, shall be deemed to be guilty of that offence unless he proves that the offence was committed without his knowledge, or that he exercised all due diligence to prevent the commission of the offence. TRADE DESCRIPTIONS ORDINANCE - SECT 21 Offences due to fault of other person VerDate:30/06/1997 Where the commission by any person of an offence under this Ordinance is due to the act or default of some other person, that other person shall be guilty of the offence, and a person may be charged with and convicted of the offence by virtue of this section whether or not proceedings are taken against the first-mentioned person. [cf. 1968 c. 29 s. 23 U.K.] TRADE DESCRIPTIONS ORDINANCE - SECT 22 Accessory to offences committed outside Hong Kong VerDate:30/06/1997 Subject to the provisions of this Ordinance, any person who, in Hong Kong, procures, counsels, aids, abets or is accessory to the commission outside Hong Kong of an act which, if committed in Hong Kong, would be an offence under this Ordinance, commits that offence as a principal and shall be liable to be prosecuted in Hong Kong as if the offence had been committed within Hong Kong. TRADE DESCRIPTIONS ORDINANCE - SECT 23 Samples VerDate:01/07/1997 Adaptation amendments retroactively made - see 65 of 2000 s. 3 (1) Where any act or omission constitutes both an offence under this Ordinance and an offence under the Public Health and Municipal Services Ordinance (Cap 132), evidence on behalf of the prosecution concerning any sample procured for analysis shall be admissible in proceedings in respect of the offence under this Ordinance if, but only if, the provisions of section 63 of the Public Health and Municipal Services Ordinance (Cap 132) have been complied with. (Amended 10 of 1986 s. 32) (2) The Chief Executive in Council may by regulations provide that in any proceedings for an offence under this Ordinance in relation to such goods as may be specified in the regulations (other than proceedings for an offence referred to in subsection (1)) evidence on behalf of the prosecution concerning any sample procured for analysis shall not be admissible unless the sample has been dealt with in such manner as may be specified in the regulations. (Amended 65 of 2000 s. 3) TRADE DESCRIPTIONS ORDINANCE - SECT 23 Samples VerDate:30/06/1997 (1) Where any act or omission constitutes both an offence under this Ordinance and an offence under the Public Health and Municipal Services Ordinance (Cap 132), evidence on behalf of the prosecution concerning any sample procured for analysis shall be admissible in proceedings in respect of the offence under this Ordinance if, but only if, the provisions of section 63 of the Public Health and Municipal Services Ordinance (Cap 132) have been complied with. (Amended 10 of 1986 s. 32) (2) The Governor in Council may by regulations provide that in any proceedings for an offence under this Ordinance in relation to such goods as may be specified in the regulations (other than proceedings for an offence referred to in subsection (1)) evidence on behalf of the prosecution concerning any sample procured for analysis shall not be admissible unless the sample has been dealt with in such manner as may be specified in the regulations. TRADE DESCRIPTIONS ORDINANCE - SECT 24 Evidence by certificate VerDate:01/07/1997 Adaptation amendments retroactively made - see 65 of 2000 s. 3 (1) The Chief Executive in Council may by regulations provide that certificates issued by such persons as may be specified by the regulations in relation to such matters as may be so specified shall, subject to this section, be received in evidence of those matters in any proceedings under this Ordinance. (Amended 65 of 2000 s. 3) (2) Such a certificate shall not be received in evidence- (a) unless the party against whom it is to be given in evidence has been served with a copy thereof not less than 7 days before the hearing; or (b) if that party has, not less than 3 days before the hearing served on the other party a notice requiring the attendance of the person issuing the certificate. (3) For the purposes of this section any document purporting to be such a certificate as is referred to in this section shall be deemed to be such a certificate unless the contrary is shown. [cf. 1968 c. 29 s. 31 U.K.] TRADE DESCRIPTIONS ORDINANCE - SECT 24 Evidence by certificate VerDate:30/06/1997 (1) The Governor in Council may by regulations provide that certificates issued by such persons as may be specified by the regulations in relation to such matters as may be so specified shall, subject to this section, be received in evidence of those matters in any proceedings under this Ordinance. (2) Such a certificate shall not be received in evidence- (a) unless the party against whom it is to be given in evidence has been served with a copy thereof not less than 7 days before the hearing; or (b) if that party has, not less than 3 days before the hearing served on the other party a notice requiring the attendance of the person issuing the certificate. (3) For the purposes of this section any document purporting to be such a certificate as is referred to in this section shall be deemed to be such a certificate unless the contrary is shown. [cf. 1968 c. 29 s. 31 U.K.] TRADE DESCRIPTIONS ORDINANCE - SECT 24A Rule of evidence regarding imported goods VerDate:17/06/2005 (1) In any prosecution for an offence under this Ordinance in respect of the import of goods to which a false trade description of the place of manufacture, production, processing or reconditioning is applied, evidence that the goods were imported from a place shall be prima facie evidence that the goods were manufactured, produced, processed or reconditioned, as the case may be, in such place. (Amended 9 of 2005 s. 3) (2) Notwithstanding subsection (1), in any prosecution for an offence referred to in that subsection, a trade description which indicates that the goods were manufactured, produced, processed or reconditioned in a place shall not be regarded as false only because of the evidence that the goods were imported from another place, if— (a) that other place is located within the first-mentioned place; or (b) the first-mentioned place is located within that other place. (Added 9 of 2005 s. 3) (Added 2 of 1987 s. 5) TRADE DESCRIPTIONS ORDINANCE - SECT 24A Rule of evidence regarding imported goods with false trade description VerDate:30/06/1997 In any prosecution for an offence under this Ordinance in respect of the import of goods to which a false trade description of the place or country of manufacture, production, processing or reconditioning is applied, evidence that the goods were imported from a place or country shall be prima facie evidence that the goods were manufactured, produced, processed or reconditioned, as the case may be, in such place or country. (Added 2 of 1987 s. 5) TRADE DESCRIPTIONS ORDINANCE - SECT 25 Description of trade mark in pleading VerDate:30/06/1997 In any information, indictment, pleading, proceeding or document in which any trade mark or forged trade mark is intended to be mentioned, it shall be sufficient, without further description and without any copy or facsimile, to state that trade mark or forged trade mark to be a trade mark or forged trade mark. TRADE DESCRIPTIONS ORDINANCE - SECT 26 Defence mistake, accident, etc. VerDate:30/06/1997 (1) In any proceedings for an offence under this Ordinance it shall, subject to subsection (2), be a defence for the person charged to prove- (a) that the commission of the offence was due to a mistake or to reliance on information supplied to him or to the act or default of another person, an accident or some other cause beyond his control; and (b) that he took all reasonable precautions and exercised all due diligence to avoid the commission of such an offence by himself or any person under his control. (2) If in any case the defence provided by subsection (1) involves the allegation that the commission of the offence was due to the act or default of another person or to reliance on information supplied by another person, the person charged shall not, without leave of the court, be entitled to rely on that defence unless, within a period ending 7 clear days before the hearing, he has served on the prosecutor a notice in writing giving such information identifying or assisting in the identification of that other person as was then in his possession. (3) In any proceedings for an offence under section 7(1)(a)(ii) or (b) it shall be a defence for the person charged to prove that he did not know, had no reason to suspect and could not with reasonable diligence have ascertained, that the goods did not conform to the description or that the description had been applied to the goods. (4) In any proceedings for an offence under section 9(2) it shall be a defence for the person charged to prove that he did not know, had no reason to suspect and could not with reasonable diligence have ascertained, that a forged trade mark had been applied to the goods or that a trade mark or mark so nearly resembling a trade mark as to be calculated to deceive had falsely been applied to the goods. [cf. 1968 c. 29 s. 24 U.K.] TRADE DESCRIPTIONS ORDINANCE - SECT 27 Innocent publication of advertisements VerDate:30/06/1997 In proceedings for an offence under this Ordinance committed by the publication of an advertisement, it shall be a defence for the person charged to prove that he is a person whose business it is to publish or arrange for the publication of advertisements and that he received the advertisement for publication in the ordinary course of business and did not know and had no reason to suspect that its publication would amount to an offence under this Ordinance. [cf. 1968 c. 29 s. 25 U.K.] TRADE DESCRIPTIONS ORDINANCE - SECT 28 Costs in proceedings VerDate:30/06/1997 In any proceedings under this Ordinance, the magistrate or court hearing the proceedings may, notwithstanding any provision of any other Ordinance, make such order as to costs as he or it may think fit. TRADE DESCRIPTIONS ORDINANCE - SECT 29 Power to make orders with respect to property in possession of the Government VerDate:01/07/1997 Adaptation amendments retroactively made - see 65 of 2000 s. 3 Where any property has come into the possession of the Government or any authorized officer acting under this Ordinance, section 102 of the Criminal Procedure Ordinance (Cap 221) shall, subject to this Ordinance, apply to such property in all respects as though such property had come into the possession of the police in connection with a criminal offence and such section shall be construed as though references to the Government or such authorized officer, as the case may be, were substituted therein for references to the police. (Amended 65 of 2000 s. 3) TRADE DESCRIPTIONS ORDINANCE - SECT 29 Power to make orders with respect to property in possession of the Crown VerDate:30/06/1997 Where any property has come into the possession of the Crown or any authorized officer acting under this Ordinance, section 102 of the Criminal Procedure Ordinance (Cap 221) shall, subject to this Ordinance, apply to such property in all respects as though such property had come into the possession of the police in connection with a criminal offence and such section shall be construed as though references to the Crown or such authorized officer, as the case may be, were substituted therein for references to the police. TRADE DESCRIPTIONS ORDINANCE - SECT 30 Forfeiture and disposal of certain goods VerDate:01/07/1997 Adaptation amendments retroactively made - see 65 of 2000 s. 3 (1) Any goods in respect of which an offence under this Ordinance has been committed shall be liable to forfeiture, whether or not any person has been convicted of any such offence. (2) Where goods are seized or detained by an authorized officer under section 15, the Commissioner may at any time release such goods to the person who appears to him to be the owner thereof or his authorized agent subject to any such condition as the Commissioner may specify in writing. (3) Where goods have not been released under subsection (2), the Commissioner may, whether in the same proceedings where an offence is prosecuted or in other proceedings under this Ordinance, apply to a court or magistrate for the forfeiture of the goods. (4) If, on the hearing of an application under subsection (3), the court or magistrate is satisfied that the goods are liable to forfeiture, the court or magistrate may order that- (a) the goods be forfeited to the Government; (Amended 65 of 2000 s. 3) (b) the goods be destroyed; (c) any false trade description applied to the goods be obliterated and thereafter the goods be- (i) disposed of in such manner and subject to any such condition as the court or magistrate may specify in the order; or (ii) released to the owner thereof or his authorized agent subject to any condition which the court or magistrate may specify in the order; or (Replaced 11 of 1996 s. 16) (d) in exceptional cases, any forged trade mark applied to the goods be obliterated and thereafter the goods be- (i) disposed of in such manner and subject to any such condition as the court or magistrate may specify in the order; or (ii) released to the owner thereof or his authorized agent subject to any condition which the court or magistrate may specify in the order. (Replaced 11 of 1996 s. 16) (5) Where under subsection (3) an application is made to a court or magistrate for the forfeiture of goods otherwise than in proceedings where an offence is prosecuted, the Commissioner shall forthwith notify in writing the owner of the goods or his authorized agent, unless the owner or his authorized agent has indicated in writing to the Commissioner that such notification is not required: Provided that, if there is more than one owner of the goods, it shall be sufficient for the purposes of this subsection to give notice to one such owner or his authorized agent, unless one such owner or his authorized agent has indicated that such notification is not required. (Replaced 2 of 1987 s. 6) TRADE DESCRIPTIONS ORDINANCE - SECT 30 Forfeiture and disposal of certain goods VerDate:30/06/1997 (1) Any goods in respect of which an offence under this Ordinance has been committed shall be liable to forfeiture, whether or not any person has been convicted of any such offence. (2) Where goods are seized or detained by an authorized officer under section 15, the Commissioner may at any time release such goods to the person who appears to him to be the owner thereof or his authorized agent subject to any such condition as the Commissioner may specify in writing. (3) Where goods have not been released under subsection (2), the Commissioner may, whether in the same proceedings where an offence is prosecuted or in other proceedings under this Ordinance, apply to a court or magistrate for the forfeiture of the goods. (4) If, on the hearing of an application under subsection (3), the court or magistrate is satisfied that the goods are liable to forfeiture, the court or magistrate may order that- (a) the goods be forfeited to the Crown; (b) the goods be destroyed; (c) any false trade description applied to the goods be obliterated and thereafter the goods be- (i) disposed of in such manner and subject to any such condition as the court or magistrate may specify in the order; or (ii) released to the owner thereof or his authorized agent subject to any condition which the court or magistrate may specify in the order; or (Replaced 11 of 1996 s. 16) (d) in exceptional cases, any forged trade mark applied to the goods be obliterated and thereafter the goods be- (i) disposed of in such manner and subject to any such condition as the court or magistrate may specify in the order; or (ii) released to the owner thereof or his authorized agent subject to any condition which the court or magistrate may specify in the order. (Replaced 11 of 1996 s. 16) (5) Where under subsection (3) an application is made to a court or magistrate for the forfeiture of goods otherwise than in proceedings where an offence is prosecuted, the Commissioner shall forthwith notify in writing the owner of the goods or his authorized agent, unless the owner or his authorized agent has indicated in writing to the Commissioner that such notification is not required: Provided that, if there is more than one owner of the goods, it shall be sufficient for the purposes of this subsection to give notice to one such owner or his authorized agent, unless one such owner or his authorized agent has indicated that such notification is not required. (Replaced 2 of 1987 s. 6) TRADE DESCRIPTIONS ORDINANCE - SECT 30A Interpretation VerDate:04/04/2003 Due to technical constraints, sections 30A, 30B, 30C, 30D, 30E, 30F, 30G, 30H, 30I, 30J and 30K of this Ordinance are placed after section 30 in the BLIS system. The correct sequence of the sections should be "31, 30A, 30B, 30C, 30D, 30E, 30F, 30G, 30H, 30I, 30J, 30K, 32". PART IIIA PROCEEDINGS RELATING TO IMPORTATION OF INFRINGING GOODS In this Part, "detention order" (扣留令) means an order made under section 30C(1). (Replaced 35 of 2000 s. 98) "detention order" (扣留令) TRADE DESCRIPTIONS ORDINANCE - SECT 30A Definitions VerDate:30/06/1997 PART IIIA PROCEEDINGS RELATING TO IMPORTATION OF INFRINGING GOODS In this Part- "detention order" (扣留令) means an order made under section 30C(1); "forged trade mark" (偽造商標) has the meaning assigned to it by section 9(3); "infringing goods" (侵犯權利貨品) means goods- (a) to which a forged trade mark has been applied; or (b) to which a trade mark or mark so nearly resembling a trade mark as to be calculated to deceive has been falsely applied. (Added 11 of 1996 s. 17) "detention order" (扣留令) "forged trade mark" (偽造商標) "infringing goods" (侵犯權利貨品) TRADE DESCRIPTIONS ORDINANCE - SECT 30B Application for detention order VerDate:04/04/2003 Due to technical constraints, sections 30A, 30B, 30C, 30D, 30E, 30F, 30G, 30H, 30I, 30J and 30K of this Ordinance are placed after section 30 in the BLIS system. The correct sequence of the sections should be "31, 30A, 30B, 30C, 30D, 30E, 30F, 30G, 30H, 30I, 30J, 30K, 32". (1) The owner of a trade mark may apply to the Court of First Instance for an order under section 30C(1) where he has reasonable ground for suspecting that the importation of goods that constitute infringing goods may take place. (Amended 25 of 1998 s. 2; 35 of 2000 s. 98) (2) An application under subsection (1) may be made ex parte but with previous notice to the Commissioner. (3) An application under subsection (1) shall be in such form as is prescribed by rules of court and shall be supported by an affidavit of the owner which- (Amended 35 of 2000 s. 98) (a) states that the deponent is the owner of the trade mark in question; (Amended 35 of 2000 s. 98) (b) states that a copy of the trade mark exhibited to the affidavit is a true copy of the trade mark; (c) states the grounds for the application, including the facts relied upon by the deponent as showing that the goods in question are prima facie infringing goods; (d) sets out a sufficiently detailed description of the goods in question to make them readily recognizable by the Commissioner; (e) sets out particulars regarding the expected mode of transportation and the expected date of importation and, if available, particulars identifying the importer; and (f) sets out such other information and exhibits such other documents as may be prescribed by rules of court. (4) Where the trade mark in question is registered, the affidavit of the owner shall exhibit a certified copy of each entry in the register that relates to the trade mark or, where it is not practicable for the deponent to obtain such a certified copy, shall state the reasons why it is not practicable to do so. (Amended 35 of 2000 s. 98) (5) No application may be made under subsection (1) with respect to goods in transit. (6) No application may be made under subsection (1) with respect to the importation by a person of goods for his private and domestic use. (Added 11 of 1996 s. 17) TRADE DESCRIPTIONS ORDINANCE - SECT 30B Application for detention order VerDate:01/07/1997 Amendments retroactively made - see 25 of 1998 s. 2 (1) The proprietor of a trade mark may apply to the Court of First Instance for an order under section 30C(1) where he has reasonable ground for suspecting that the importation of goods that constitute infringing goods may take place. (Amended 25 of 1998 s. 2) (2) An application under subsection (1) may be made ex parte but with previous notice to the Commissioner. (3) An application under subsection (1) shall be in such form as is prescribed by rules of court and shall be supported by an affidavit of the proprietor which- (a) states that the deponent is the proprietor of the trade mark in question; (b) states that a copy of the trade mark exhibited to the affidavit is a true copy of the trade mark; (c) states the grounds for the application, including the facts relied upon by the deponent as showing that the goods in question are prima facie infringing goods; (d) sets out a sufficiently detailed description of the goods in question to make them readily recognizable by the Commissioner; (e) sets out particulars regarding the expected mode of transportation and the expected date of importation and, if available, particulars identifying the importer; and (f) sets out such other information and exhibits such other documents as may be prescribed by rules of court. (4) Where the trade mark in question is registered, the affidavit of the proprietor shall exhibit a certified copy of each entry in the register that relates to the trade mark or, where it is not practicable for the deponent to obtain such a certified copy, shall state the reasons why it is not practicable to do so. (5) No application may be made under subsection (1) with respect to goods in transit. (6) No application may be made under subsection (1) with respect to the importation by a person of goods for his private and domestic use. (Added 11 of 1996 s. 17) TRADE DESCRIPTIONS ORDINANCE - SECT 30B Application for detention order VerDate:30/06/1997 (1) The proprietor of a trade mark may apply to the High Court for an order under section 30C(1) where he has reasonable ground for suspecting that the importation of goods that constitute infringing goods may take place. (2) An application under subsection (1) may be made ex parte but with previous notice to the Commissioner. (3) An application under subsection (1) shall be in such form as is prescribed by rules of court and shall be supported by an affidavit of the proprietor which- (a) states that the deponent is the proprietor of the trade mark in question; (b) states that a copy of the trade mark exhibited to the affidavit is a true copy of the trade mark; (c) states the grounds for the application, including the facts relied upon by the deponent as showing that the goods in question are prima facie infringing goods; (d) sets out a sufficiently detailed description of the goods in question to make them readily recognizable by the Commissioner; (e) sets out particulars regarding the expected mode of transportation and the expected date of importation and, if available, particulars identifying the importer; and (f) sets out such other information and exhibits such other documents as may be prescribed by rules of court. (4) Where the trade mark in question is registered, the affidavit of the proprietor shall exhibit a certified copy of each entry in the register that relates to the trade mark or, where it is not practicable for the deponent to obtain such a certified copy, shall state the reasons why it is not practicable to do so. (5) No application may be made under subsection (1) with respect to goods in transit. (6) No application may be made under subsection (1) with respect to the importation by a person of goods for his private and domestic use. (Added 11 of 1996 s. 17) TRADE DESCRIPTIONS ORDINANCE - SECT 30C Issuance of detention order VerDate:04/04/2003 Due to technical constraints, sections 30A, 30B, 30C, 30D, 30E, 30F, 30G, 30H, 30I, 30J and 30K of this Ordinance are placed after section 30 in the BLIS system. The correct sequence of the sections should be "31, 30A, 30B, 30C, 30D, 30E, 30F, 30G, 30H, 30I, 30J, 30K, 32". (1) Where, on the hearing of an application made under section 30B, the owner presents adequate evidence to satisfy the Court of First Instance that the goods in question are prima facie infringing goods, the Court of First Instance may make an order directing the Commissioner or an authorized officer to take reasonable measures to seize or detain the goods on or after their importation. (Amended 35 of 2000 s. 98) (2) The Court of First Instance may require the owner of the trade mark to provide security or an equivalent assurance in an amount sufficient to protect the importer and any other person having an interest in the goods to be detained, including the consignor and consignee, from any loss or damage that may be incurred in the event that the detention is wrongful or the goods are released to the importer under section 30D(6). (Amended 35 of 2000 s. 98) (3) A detention order may contain such terms and conditions as the Court of First Instance considers appropriate. (4) The Court of First Instance shall not make a detention order with respect to any goods that have been seized or detained by, and that are in the custody of, the Commissioner or an authorized officer pursuant to any law. (5) Where the Commissioner or an authorized officer seizes or detains any goods pursuant to any law, other than this Part, any detention order made with respect to those goods shall cease to have effect. (6) Where the Court of First Instance makes a detention order, the owner of the trade mark shall forthwith serve a copy of the order on the Commissioner. (Amended 35 of 2000 s. 98) (7) A detention order has effect from the date on which it is made or such later date as may be specified by the Court of First Instance and shall cease to have effect 60 days from that date unless the Commissioner or an authorized officer has, pursuant to the order and within that period, seized or detained any goods to which the order applies. (Added 11 of 1996 s. 17. Amended 25 of 1998 s. 2) TRADE DESCRIPTIONS ORDINANCE - SECT 30C Issuance of detention order VerDate:01/07/1997 Amendments retroactively made - see 25 of 1998 s. 2 (1) Where, on the hearing of an application made under section 30B, the proprietor presents adequate evidence to satisfy the Court of First Instance that the goods in question are prima facie infringing goods, the Court of First Instance may make an order directing the Commissioner or an authorized officer to take reasonable measures to seize or detain the goods on or after their importation. (2) The Court of First Instance may require the proprietor of the trade mark to provide security or an equivalent assurance in an amount sufficient to protect the importer and any other person having an interest in the goods to be detained, including the consignor and consignee, from any loss or damage that may be incurred in the event that the detention is wrongful or the goods are released to the importer under section 30D(6). (3) A detention order may contain such terms and conditions as the Court of First Instance considers appropriate. (4) The Court of First Instance shall not make a detention order with respect to any goods that have been seized or detained by, and that are in the custody of, the Commissioner or an authorized officer pursuant to any law. (5) Where the Commissioner or an authorized officer seizes or detains any goods pursuant to any law, other than this Part, any detention order made with respect to those goods shall cease to have effect. (6) Where the Court of First Instance makes a detention order, the proprietor of the trade mark shall forthwith serve a copy of the order on the Commissioner. (7) A detention order has effect from the date on which it is made or such later date as may be specified by the Court of First Instance and shall cease to have effect 60 days from that date unless the Commissioner or an authorized officer has, pursuant to the order and within that period, seized or detained any goods to which the order applies. (Added 11 of 1996 s. 17. Amended 25 of 1998 s. 2) TRADE DESCRIPTIONS ORDINANCE - SECT 30C Insurance of detention order VerDate:30/06/1997 (1) Where, on the hearing of an application made under section 30B, the proprietor presents adequate evidence to satisfy the High Court that the goods in question are prima facie infringing goods, the High Court may make an order directing the Commissioner or an authorized officer to take reasonable measures to seize or detain the goods on or after their importation. (2) The High Court may require the proprietor of the trade mark to provide security or an equivalent assurance in an amount sufficient to protect the importer and any other person having an interest in the goods to be detained, including the consignor and consignee, from any loss or damage that may be incurred in the event that the detention is wrongful or the goods are released to the importer under section 30D(6). (3) A detention order may contain such terms and conditions as the High Court considers appropriate. (4) The High Court shall not make a detention order with respect to any goods that have been seized or detained by, and that are in the custody of, the Commissioner or an authorized officer pursuant to any law. (5) Where the Commissioner or an authorized officer seizes or detains any goods pursuant to any law, other than this Part, any detention order made with respect to those goods shall cease to have effect. (6) Where the High Court makes a detention order, the proprietor of the trade mark shall forthwith serve a copy of the order on the Commissioner. (7) A detention order has effect from the date on which it is made or such later date as may be specified by the High Court and shall cease to have effect 60 days from that date unless the Commissioner or an authorized officer has, pursuant to the order and within that period, seized or detained any goods to which the order applies. (Added 11 of 1996 s. 17) TRADE DESCRIPTIONS ORDINANCE - SECT 30D Enforcement of detention order VerDate:04/04/2003 Due to technical constraints, sections 30A, 30B, 30C, 30D, 30E, 30F, 30G, 30H, 30I, 30J and 30K of this Ordinance are placed after section 30 in the BLIS system. The correct sequence of the sections should be "31, 30A, 30B, 30C, 30D, 30E, 30F, 30G, 30H, 30I, 30J, 30K, 32". (1) Where a detention order is served on the Commissioner, the Commissioner or an authorized officer may, subject to the terms and conditions of the order, seize or detain any goods to which the order applies. (2) The owner of the trade mark shall- (Amended 35 of 2000 s. 98) (a) supply to the Commissioner or an authorized officer sufficient information on the goods and the particular importation to render the goods recognizable and the shipment or particular importation identifiable and any other information the Commissioner or an authorized officer may reasonably require for the purpose of carrying out the detention order; (b) deposit with the Commissioner an amount that is, in the opinion of the Commissioner, sufficient to reimburse the Government for the costs likely to be incurred in connection with the carrying out of the detention order; and (c) upon notification in writing by the Commissioner or an authorized officer of the seizure or detention of the goods, provide such storage space and other facilities as he may require. (3) The Commissioner or an authorized officer may refuse to carry out the detention order if the owner of the trade mark fails to comply with subsection (2). (4) The Commissioner may, after giving written notice to the owner of the trade mark, apply to the Court of First Instance for directions in carrying out the detention order, and the Court of First Instance may, after giving the owner an opportunity to be heard, give such directions as it deems fit. (Amended 25 of 1998 s. 2) (5) The Commissioner or an authorized officer shall forthwith after goods are seized or detained pursuant to a detention order, give written notice of the seizure or detention to- (a) the owner of the trade mark; (b) the importer; and (c) any other person to whom notice is required to be given by the terms of the order. (6) Subject to subsection (7) and to any law authorizing the Commissioner or an authorized officer to seize or detain goods, the Commissioner or an authorized officer shall release any goods that have been seized or detained pursuant to a detention order to the importer if the owner of the trade mark has not, within a period of 10 days after notice of the seizure or detention is given to the owner, notified the Commissioner in writing that an action for infringement in respect of the goods has been brought under the Trade Marks Ordinance (Cap 559). (7) The Court of First Instance may, on application by the owner of the trade mark, after giving the Commissioner and each person to whom notice is required to be given under subsection (5) an opportunity to be heard, extend the period referred to in subsection (6) by a period not exceeding an additional 10 days if it is satisfied that the request for the extension is reasonable. (Amended 25 of 1998 s. 2) (8) In proceedings under subsection (7), the Court of First Instance may require the owner of the trade mark to provide security or an equivalent assurance in addition to that provided in accordance with section 30C(2). (Amended 25 of 1998 s. 2) (9) Where the owner of the trade mark has, within the period referred to in subsection (6), as may be extended under subsection (7), notified the Commissioner in writing that an action for infringement in respect of the goods has been brought under the Trade Marks Ordinance (Cap 559), the Commissioner or an authorized officer shall retain custody of the goods subject to the direction of the Court of First Instance in the infringement proceedings. (Amended 25 of 1998 s. 2) (10) No public holiday, gale warning day or black rainstorm warning day shall be reckoned in the computation of the period referred to in subsection (6), as may be extended under subsection (7). (11) In this section- "black rainstorm warning day" (黑色暴雨警告日) means any day throughout or for part of which a black rainstorm warning is in force, and "black rainstorm warning" (黑色暴雨警告) means a warning issued by the Director of the Hong Kong Observatory of a heavy rainstorm in, or in the vicinity of, Hong Kong by the use of the heavy rainstorm signal commonly referred to as Black; (Amended L.N. 362 of 1997) "gale warning day" (烈風警告日) means any day throughout or for part of which a gale warning is in force, and "gale warning" (烈風警告) has the meaning assigned to it by section 2 of the Judicial Proceedings (Adjournment During Gale Warnings) Ordinance (Cap 62). (Added 11 of 1996 s. 17. Amended 35 of 2000 s. 98) "black rainstorm warning day" (黑色暴雨警告日) "black rainstorm warning" (黑色暴雨警告) "gale warning day" (烈風警告日) "gale warning" (烈風警告) TRADE DESCRIPTIONS ORDINANCE - SECT 30D Enforcement of detention order VerDate:01/07/1997 Adaptation amendments retroactively made - see 25 of 1998 s. 2 (1) Where a detention order is served on the Commissioner, the Commissioner or an authorized officer may, subject to the terms and conditions of the order, seize or detain any goods to which the order applies. (2) The proprietor of the trade mark shall- (a) supply to the Commissioner or an authorized officer sufficient information on the goods and the particular importation to render the goods recognizable and the shipment or particular importation identifiable and any other information the Commissioner or an authorized officer may reasonably require for the purpose of carrying out the detention order; (b) deposit with the Commissioner an amount that is, in the opinion of the Commissioner, sufficient to reimburse the Government for the costs likely to be incurred in connection with the carrying out of the detention order; and (c) upon notification in writing by the Commissioner or an authorized officer of the seizure or detention of the goods, provide such storage space and other facilities as he may require. (3) The Commissioner or an authorized officer may refuse to carry out the detention order if the proprietor of the trade mark fails to comply with subsection (2). (4) The Commissioner may, after giving written notice to the proprietor of the trade mark, apply to the Court of First Instance for directions in carrying out the detention order, and the Court of First Instance may, after giving the proprietor an opportunity to be heard, give such directions as it deems fit. (Amended 25 of 1998 s. 2) (5) The Commissioner or an authorized officer shall forthwith after goods are seized or detained pursuant to a detention order, give written notice of the seizure or detention to- (a) the proprietor of the trade mark; (b) the importer; and (c) any other person to whom notice is required to be given by the terms of the order. (6) Subject to subsection (7) and to any law authorizing the Commissioner or an authorized officer to seize or detain goods, the Commissioner or an authorized officer shall release any goods that have been seized or detained pursuant to a detention order to the importer if the proprietor of the trade mark has not, within a period of 10 days after notice of the seizure or detention is given to the proprietor, notified the Commissioner in writing that an action for infringement in respect of the goods has been brought under the Trade Marks Ordinance (Cap 43). (7) The Court of First Instance may, on application by the proprietor of the trade mark, after giving the Commissioner and each person to whom notice is required to be given under subsection (5) an opportunity to be heard, extend the period referred to in subsection (6) by a period not exceeding an additional 10 days if it is satisfied that the request for the extension is reasonable. (Amended 25 of 1998 s. 2) (8) In proceedings under subsection (7), the Court of First Instance may require the proprietor of the trade mark to provide security or an equivalent assurance in addition to that provided in accordance with section 30C(2). (Amended 25 of 1998 s. 2) (9) Where the proprietor of the trade mark has, within the period referred to in subsection (6), as may be extended under subsection (7), notified the Commissioner in writing that an action for infringement in respect of the goods has been brought under the Trade Marks Ordinance (Cap 43), the Commissioner or an authorized officer shall retain custody of the goods subject to the direction of the Court of First Instance in the infringement proceedings. (Amended 25 of 1998 s. 2) (10) No public holiday, gale warning day or black rainstorm warning day shall be reckoned in the computation of the period referred to in subsection (6), as may be extended under subsection (7). (11) In this section- "black rainstorm warning day" (黑色暴雨警告日) means any day throughout or for part of which a black rainstorm warning is in force, and "black rainstorm warning" (黑色暴雨警告) means a warning issued by the Director of the Hong Kong Observatory of a heavy rainstorm in, or in the vicinity of, Hong Kong by the use of the heavy rainstorm signal commonly referred to as Black; (Amended L.N. 362 of 1997) "gale warning day" (烈風警告日) means any day throughout or for part of which a gale warning is in force, and "gale warning" (烈風警告) has the meaning assigned to it by section 2 of the Judicial Proceedings (Adjournment During Gale Warnings) Ordinance (Cap 62). (Added 11 of 1996 s. 17) "black rainstorm warning day" (黑色暴雨警告日) "black rainstorm warning" (黑色暴雨警告) "gale warning day" (烈風警告日) "gale warning" (烈風警告) TRADE DESCRIPTIONS ORDINANCE - SECT 30D Enforcement of detention order VerDate:30/06/1997 (1) Where a detention order is served on the Commissioner, the Commissioner or an authorized officer may, subject to the terms and conditions of the order, seize or detain any goods to which the order applies. (2) The proprietor of the trade mark shall- (a) supply to the Commissioner or an authorized officer sufficient information on the goods and the particular importation to render the goods recognizable and the shipment or particular importation identifiable and any other information the Commissioner or an authorized officer may reasonably require for the purpose of carrying out the detention order; (b) deposit with the Commissioner an amount that is, in the opinion of the Commissioner, sufficient to reimburse the Government for the costs likely to be incurred in connection with the carrying out of the detention order; and (c) upon notification in writing by the Commissioner or an authorized officer of the seizure or detention of the goods, provide such storage space and other facilities as he may require. (3) The Commissioner or an authorized officer may refuse to carry out the detention order if the proprietor of the trade mark fails to comply with subsection (2). (4) The Commissioner may, after giving written notice to the proprietor of the trade mark, apply to the High Court for directions in carrying out the detention order, and the High Court may, after giving the proprietor an opportunity to be heard, give such directions as it deems fit. (5) The Commissioner or an authorized officer shall forthwith after goods are seized or detained pursuant to a detention order, give written notice of the seizure or detention to- (a) the proprietor of the trade mark; (b) the importer; and (c) any other person to whom notice is required to be given by the terms of the order. (6) Subject to subsection (7) and to any law authorizing the Commissioner or an authorized officer to seize or detain goods, the Commissioner or an authorized officer shall release any goods that have been seized or detained pursuant to a detention order to the importer if the proprietor of the trade mark has not, within a period of 10 days after notice of the seizure or detention is given to the proprietor, notified the Commissioner in writing that an action for infringement in respect of the goods has been brought under the Trade Marks Ordinance (Cap 43). (7) The High Court may, on application by the proprietor of the trade mark, after giving the Commissioner and each person to whom notice is required to be given under subsection (5) an opportunity to be heard, extend the period referred to in subsection (6) by a period not exceeding an additional 10 days if it is satisfied that the request for the extension is reasonable. (8) In proceedings under subsection (7), the High Court may require the proprietor of the trade mark to provide security or an equivalent assurance in addition to that provided in accordance with section 30C(2). (9) Where the proprietor of the trade mark has, within the period referred to in subsection (6), as may be extended under subsection (7), notified the Commissioner in writing that an action for infringement in respect of the goods has been brought under the Trade Marks Ordinance (Cap 43), the Commissioner or an authorized officer shall retain custody of the goods subject to the direction of the High Court in the infringement proceedings. (10) No public holiday, gale warning day or black rainstorm warning day shall be reckoned in the computation of the period referred to in subsection (6), as may be extended under subsection (7). (11) In this section- "black rainstorm warning day" (黑色暴雨警告日) means any day throughout or for part of which a black rainstorm warning is in force, and "black rainstorm warning" (黑色暴雨警告) means a warning issued by the Director of the Royal Observatory of a heavy rainstorm in, or in the vicinity of, Hong Kong by the use of the heavy rainstorm signal commonly referred to as Black; "gale warning day" (烈風警告日) means any day throughout or for part of which a gale warning is in force, and "gale warning" (烈風警告) has the meaning assigned to it by section 2 of the Judicial Proceedings (Adjournment During Gale Warnings) Ordinance (Cap 62). (Added 11 of 1996 s. 17) "black rainstorm warning day" (黑色暴雨警告日) "black rainstorm warning" (黑色暴雨警告) "gale warning day" (烈風警告日) "gale warning" (烈風警告) TRADE DESCRIPTIONS ORDINANCE - SECT 30E Variation or setting aside of detention order VerDate:04/04/2003 Due to technical constraints, sections 30A, 30B, 30C, 30D, 30E, 30F, 30G, 30H, 30I, 30J and 30K of this Ordinance are placed after section 30 in the BLIS system. The correct sequence of the sections should be "31, 30A, 30B, 30C, 30D, 30E, 30F, 30G, 30H, 30I, 30J, 30K, 32". (1) The Commissioner or the owner of the trade mark may at any time apply to the Court of First Instance to vary the detention order. (Amended 35 of 2000 s. 98) (2) The importer or any other person affected by the detention order may at any time apply to the Court of First Instance to vary or set aside the order. (3) A person who makes an application under subsection (1) or (2) shall give to the other parties such notice of the day fixed for the hearing of the application as a judge of the Court of First Instance may order. (4) On the hearing of an application under subsection (1) or (2) to vary a detention order, the Court of First Instance may vary the order in such manner as it thinks just. (5) On the hearing of an application under subsection (2) to set aside a detention order, the Court of First Instance may set aside the order on such terms and conditions as it thinks just. (6) For the purposes of subsection (3)- (a) the parties to an application under subsection (1) are the Commissioner, the owner of the trade mark and, if the goods in question have been seized or detained pursuant to the detention order, the importer and any other person to whom notice is required to be given under section 30D(5); and (b) the parties to an application under subsection (2) are the Commissioner, the owner of the trade mark, the applicant and the importer, i