Page:Trade Marks Ordinance (Cap. 559).pdf/32

TRADE MARKS ORDINANCE 40. Classification of goods and services

(1) Goods and services shall be classified for the purposes of the registration of trade marks according to a prescribed system of classification.

(2) Any question arising as to the class within which any goods or services fall shall be determined by the Registrar.

41. Claim to priority

(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 beginning on the date of filing of the first of any such applications, subject to compliance with any prescribed conditions.

(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priority if, and only if, on the date of filing of the subsequent application, the previous application has been withdrawn, abandoned or refused, without being open to public inspection and without leaving any rights outstanding, and has not served as a basis for claiming a right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.