Hong Kong Ordinances

TRADE DESCRIPTIONS ORDINANCE - SECT 9

Offences in respect of trade marks

(Past version on 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 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)