Page:Trade Marks Ordinance (Cap. 559).pdf/14

TRADE MARKS ORDINANCE :(b) the goods or services for which the application for registration is made are identical or similar to those for which the earlier trade mark is protected; and
 * (c) the use of the trade mark in relation to those goods or services is likely to cause confusion on the part of the public.

(4) Subject to subsection (6), a trade mark which is—
 * (a) identical or similar to an earlier trade mark; and
 * (b) proposed to be registered for goods or services which are not identical or similar to those for which the earlier trade mark is protected,

shall not be registered if, or to the extent that, the earlier trade mark is entitled to protection under the Paris Convention as a well-known trade mark and the use of the later trade mark without due cause would take unfair advantage of, or be detrimental to, the distinctive character or repute of the earlier trade mark.

(5) Subject to subsection (6), a trade mark shall not be registered if, or to the extent that, its use in Hong Kong is liable to be prevented—
 * (a) by virtue of any rule of law protecting an unregistered trade mark or other sign used in the course of trade or business (in particular, by virtue of the law of passing off); or
 * (b) by virtue of an earlier right other than those referred to in paragraph (a) or in subsections (1) to (4) (in particular, by virtue of the law of copyright or registered designs),

and a person thus entitled to prevent the use of a trade mark is referred to in this Ordinance as the owner of an “earlier right” in relation to the trade mark.

(6) A trade mark may be refused registration on any one or more of the grounds mentioned in subsections (4) and (5) only if an objection on those grounds is raised in proceedings in opposition to the registration under section 44 (opposition proceedings) by the owner of the earlier trade mark or other earlier right.

(7) Where the grounds for the refusal of registration exist in respect of only some of the goods or services for which the application for registration is made, the refusal shall apply to those goods or services only.

(8) Nothing in this section prevents the registration of a trade mark where the owner of the earlier trade mark or other earlier right consents to the registration.

13. Honest concurrent use, etc.

(1) Nothing in section 12 (relative grounds for refusal of registration) prevents the registration of a trade mark where the Registrar or the court is satisfied—