Hong Kong Ordinances

TRADE MARKS ORDINANCE - SECT 41

Claim to priority

(Past version on 04/04/2003).

(1) A person who has duly filed an application for the registration of a
trade mark in, or in respect of, a Paris Convention country or WTO  member, or
his successor in title, shall enjoy, for the purpose of registering the same
trade mark under this Ordinance in respect of any or all of the same goods or
services, a right of priority for a period of 6 months after the date of
filing of the first of any such applications, subject to compliance with any
prescribed conditions. (Amended 10 of 2005 s. 35)

(2) If the application for registration under this Ordinance is made within
the 6-month period referred to in subsection (1)-

   (a)  the relevant date for the purposes of establishing which rights take
        precedence shall be the date of filing of the first Convention 
        application or WTO application, as the case may be; and

   (b)  the registrability of the trade mark shall not be affected by any use
        of the trade mark in Hong Kong in the period between that date and the
        date of the application for registration under this Ordinance.

(3) Any filing of an application for registration of a trade mark in, or in
respect of, a Paris Convention country or WTO member which is equivalent to a
regular national filing under the law of that Paris  Convention country or
WTO member, or under any bilateral or multilateral agreement to which it is a
party, shall be recognized as giving rise to a right of priority.

(4) In subsection (3), "regular national filing" (正規國家提交) means a
filing of an application for registration of a trade mark in, or in respect
of, a Paris Convention country or WTO member that establishes the date on
which the application was filed, whatever the outcome of the application may
be.

(5) A subsequent application for registration of a trade mark that was the
subject of a previous application, and that is filed in, or in respect of, the
same Paris Convention country or WTO member, shall be considered as the first
application for the purpose of determining priority if, and only if, on the
date of filing of the subsequent application, the previous application has
been withdrawn, abandoned or refused, without being open to public inspection
and without leaving any rights outstanding, and has not served as a basis for
claiming a right of priority.

(6) The previous application referred to in subsection (5) may not thereafter
serve as a basis for claiming a right of priority.

(7) Provision may be made by the rules as to the manner of claiming a right to
priority on the basis of a Convention application or WTO  application, as the
case may be.

(8) A right to priority arising as a result of a Convention  application or
WTO application, as the case may be, may be assigned or otherwise transmitted,
either with the application or independently; and
the reference in subsection (1) to the person's "successor in title"
(所有權繼承 人) shall be construed accordingly.

(9) In this section-

"Convention application" (公約申請) means an application for registration
of a trade mark in, or in respect of, a Paris Convention country;

"WTO application" (世貿申請) means an application for registration of a
trade  mark in, or in respect of, a WTO member.

"regular national filing" (正規國家提交)

"successor in title" (所有權繼承人)

"Convention application" (公約申請)

"WTO application" (世貿申請)