A trademark is a type of (legally recognised) intellectual property. It consists of a mark (i.e. a sign, expression or design) that can distinguish the products and/or services of one trader from those of another. The owner of a trademark can be a business organisation, an individual, or a legal entity. A trademark may be located on a label, a package, a voucher or on the product itself. Trademarks are also often displayed on companies’ buildings for the purpose of corporate identity.
Specifically, pursuant to section 3 of the Trade Marks Ordinance (Cap. 559), a trademark may consist of designs, words (including names), letters, numerals, characters, indications, colours, figurative elements, the shape of goods or the packing of goods. Although a trademark can also consist of sounds and smells, such trademark must be capable of being represented graphically (i.e. by way of written description, drawing, writing, musical notation or any combination thereof). Hence, a smell or a sound cannot be registered as a trademark unless it can be described clearly by way of written description or drawing.
While some countries differentiate between marks connected with goods and those connected with services by adopting the terms “trade marks” and “service marks” respectively, Hong Kong’s Trade Marks Ordinance (Cap. 559) has not adopted such a distinction. A trademark can either be registered or unregistered. If it is registered under the Ordinance, it will be referred to as a “registered trademark”. The major difference between a registered trademark and an unregistered trademark is that registration entitles the owner of the trademark to enjoy the protection afforded by the Ordinance. If a trademark has not been registered in Hong Kong, it will not be protected by the Ordinance even if it has been registered in another jurisdiction. An unregistered trademark is only protected against the action of passing off under common law.
Bibliography:
- Intellectual Property Department, ‘Trademarks’: https://www.ipd.gov.hk/eng/trademarks.htm