1. To be more specific, what things may constitute a trade mark?
With reference to section 3 of the Trade Marks Ordinance, which entered into force on 4 April 2003, a trade mark may consist of words (including personal names), indications, designs, letters, characters, numerals, figurative elements, colours, the shape of goods or their packing, and even sounds and smells. This provision allows a broader range of marks to be trade marks than that permitted under the previous law, which forbade sounds and smells to be trade marks. However, you must note that under the Ordinance, a trade mark must be capable of being represented graphically, i.e., by way of writing, drawing, musical notation, written description or any combination thereof. Thus unless a sound or smell can be clearly described by drawing or any written description, it cannot be registered as a trade mark.
Special Trade Marks
The following special trade marks are also registrable under the Trade Marks Ordinance:
- Certification Marks, which indicate that the goods or services in connection with which it is used are certified by the owner of the sign in respect of origin, material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics.
- Collective Marks, which indicate the commercial origin of goods or services in members of an association rather than origin in one particular manufacturer or service provider.
- Defensive Marks, which is trade mark that has been used so much that it has become exceptionally well known in Hong Kong. A defensive trade mark may be registered in respect of particular goods or services even if the owner of the registered trade mark does not use or intend to use the trade mark in relation to those goods or services.
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