Perspective trademark law
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A trademark represents a product or service and is a symbol of goodwill. The establishment of goodwill is not a good thing. If a trademark is not registered and it is counterfeited and the holder suffers losses, then it is difficult to sue the other party and recover the compensation. Therefore, in order to maintain goodwill, in addition to actively improving the quality of products and services, registering trademarks early and protecting them from infringement is also the key.
What is a trademark?
According to the interpretation of the Trade Marks Ordinance of Article 43 of the Laws of Hong Kong, a mark is a sign or pattern used by a trader to identify a good or a service provided by a trader. It can be any visible and graphical representation. Mark, by text, personal name, letter, number, graphic or face The combination of colors also includes any combination of such tokens.
If a trademark is to be registered in Hong Kong, it must have distinctive features for identification. According to the "Introduction to Hong Kong Trademark Law" by Kwok-Chen Law Firm, "some praises or adjectives such as "Advanced", "Easy" and "Comfort" are generally not accepted as registered trademarks; in addition, surnames or Local names, such as "Paris" and "Zhang Ji", cannot be registered as registered trademarks unless the holder can prove that the trademark has been used for many years and has thus gained a certain reputation to identify its goods or services. ."
Therefore, the most ideal trademarks are some words or patterns that are not particularly interesting or fabricated, such as "KODAK", "ROLEX" or HSBC's hexagonal logo.
Why register?
Trademarks can be divided into unregistered and registered. Even if a trademark is not registered, it is also protected by common law to ensure that it is not confessed. However, the trademark holder must verify that the trademark has a certain goodwill and the infringer’s behavior causes the holder to suffer actual losses. However, to prove this point, it is time-consuming to wreck, and it is never easy. In general, it is more difficult to confess accusations than to infringe registered trademarks. Therefore, it is absolutely necessary to register trademarks at an early stage. Once the trademark is registered, the holder has the right to take legal action against the infringer without proof of the above two points. The infringer is more likely to be subject to a maximum penalty of a fine of $500,000 and five years in prison.
Trademarks that meet the criteria set out in the Trade Marks Ordinance may be registered in Part A or Part B of the Trademark Register. In the case of registration in Part A, the mark must comply with any of the following criteria:
· The name or name of the company, individual or business name expressed in a special way
·Signature of the applicant (except for Chinese characters)
·New words
· It is not a word describing the goods or services that use the mark, nor is it a geographical name or last name
· Any other significant mark
· Marks that appear to be non-significant on the surface, but become significant after use
Any mark that fails to meet the requirements required to be registered in Part A may be registered in Part B. The difference between the two is that the trademarks registered in Part A need to be highly unique, but the protection they receive is also greater. The review scale of Part B registration is generally less strict than that of Part A. Some less unique trademarks may not be registered in Part A, but may be accepted for registration in Part B after many years of use.
In some cases, a registered trademark may be objected to. If the trademark is registered in Part A, the objection cannot be raised after seven years from the date of registration, unless the trademark is in some way (such as fraud). Means) to obtain registration, it is another matter. However, a trademark registered in Part B does not have this protection. Even after the expiration of seven years from the date of registration, its effectiveness can still be challenged for some reasons (such as improper registration).
Registered trademark holders have the right to prevent others from using signs similar to their own trademarks, but if they are registered in Part B, the defendant can only provide evidence to prove that there is no confusion between the two trademarks, and a defense can be established.
Product and service classification
For the convenience of management, goods and services for trademark registration are classified into forty-two categories, including 34 categories of goods and eight types of services, such as category 2: pigments, varnishes, lacquers; preservatives and wood preservatives; Mortal; mordant; raw natural resin; metal foil and metal powder for painters, decorators, printers and artists. Category 16 is: paper, cardboard and their products that are not classified; printed matter; stapled articles; photographs; stationery; stationery or household adhesives; art supplies; brushes; typewriters and office supplies (except furniture); And teaching supplies (except instruments); plastic articles for packaging (not belonging to other categories); cards; printed typeface; printing plates. When applying for registration, the holder must indicate the goods or services identified by the trademark and their categories. If more than one type of goods or services are identified, the holder must apply for registration separately in each category.
In some cases, the holder will identify different types of goods with a trademark. The situation is as follows: "An example of the Hong Kong Trademark Laws": "For example, a fashion group may use the same trademark to identify the clothes and shoes produced. (Article 25), leather handbags (eighteenth category), glasses (ninth category), jewelry (fourteenth category) and the fashion outlets under the name (thirty-fifth category). In this case Under the contract, the holders must register the trademarks in five categories. If the trademark is only registered in one of the categories, it cannot prevent the third party from using the trademark on other categories of goods or services."
Application Procedures
Before applying for a registered trademark, the holder can use the computer system in the Trademarks Office of the Intellectual Property Department to search under the relevant categories of the Trademark Register or the pending application list to see if there is any similarity or similarity. The trademark has been registered or is awaiting registration. Although the search results have no decisive effect, they are also an indicator for reference.
If the search results show that there is no problem, the applicant can submit the completed application form together with the trademark sample to the Trade Marks Registry.
If the applicant's trademark is composed of words, the trademark should be submitted in black and white; if the applicant's trademark is colored, the applicant can only submit a colored pattern. However, this will limit the protection to the color submitted. It is wise to submit black and white and colored patterns together. If the applicant's trademark appears in more than one form, the different forms of the application will not affect the basic identity of the trademark (such as the writing and shorthand of the trademark - "Flying Dragon" and "Flying Dragon", normal writing or In the form of art, etc.), the applicant may wish to consider registering the different forms of the trademark as a "series of trademarks".
In addition, applicants are also required to fill in the priority of applying for an earlier date than the date of filing the application. If the holder's trademark is applied for in Hong Kong within six months of applying for registration in other Paris Convention countries or WTO members, the priority date for application in Hong Kong can be traced back to the date of application of the former Contracting State. If you wish to seek priority under this arrangement, the applicant's trademark in Hong Kong must be identical to the one applied in another Contracting State. The scope of the goods or services registered must not be wider than that of other Contracting States. Applicants must indicate on the application form the date of the first application and the date of application.
Upon receipt of the application, the Registry will review and review the mark of the application for registration to determine whether the application complies with the requirements of the Trade Marks Ordinance, and whether the mark of application for registration is inconsistent with the other owner or the applicant has registered or has applied for registration. Mark of similar goods or services.
If the application for registration is rejected, the applicant may reply to the Registrar of Trademarks in writing or request a hearing in writing within six months from the date of receipt of the rebuttal. If the result is still not satisfactory, the applicant may appeal to the High Court.
Applicants may request extension of the time limit for any action or any legal process in order to maintain their application pending, and the time limit for extension may be three months. If the registration office is within six months from the date of receipt of the examination report by the applicant, or within three months from the date of receipt of the official letter of the official rebuttal application or the official letter of registration, the applicant shall not be counted in writing. In response, and the applicant did not request an extension time limit before the expiration of the above six-month or three-month period, in order to maintain the application at the pending stage, the application will be withdrawn.
If the Registry considers that the application is in compliance with the requirements and is acceptable, it will issue a permit to apply for the announcement, setting out the conditions for the trademark to be approved for registration. Upon receipt of the permit, the applicant must arrange for an announcement in the Hong Kong Government Gazette on the application. Anyone who is dissatisfied with the registration of the trademark may file an objection within two months. If the time limit expires and no objection is raised, the Registry will issue the certificate of registration to the applicant after the business has been entered into the register.
In view of the characteristics of trademarks used to identify goods or services, Wu Qiuquan, a designer who has designed trademarks for major enterprises and famous brands, will also start from the aspects of corporate mission, strategic needs, business philosophy, etc. The mark that best fits the image of the institution, product or service.
"Brand design is not simple. It can be a tangible or intangible image symbol of an organization, product, service, country, region or individual. Corporate mission, shareholder intention, etc., all will be reflected in the trademark. So when a customer finds us Design trademarks, we will first understand with customers the starting point of the trademark. Just as we were commissioned by a handbag factory to design the brand, we also talked with them at the time, and went to the domestic production base to visit and inspect the business model. Key markets, etc., and later learned that they intend to enter the US and Canada market design brands, we will use this as the focus of trademark design."
"There are different reasons why organizations need to redesign their trademarks. It can be because of business restructuring, market repositioning, or because of changes in business philosophy. But through successful trademark design, they can achieve the same purpose - to identify consumers. Its goods or services, when you see a trademark, will remind you of related products or services, and a series of meanings, experiences and feelings."
After the completion of the trademark design, Mr. Wu will set some standards for its use, so that when the trademark is used in different environments and different situations, there will be a uniform specification for the parties to follow.
"Taking the logo of the Hong Kong Dance Company as an example, I also designed its horizontal and vertical styles. For example, the correct ratio of the horizontal logo is 23:11. The size of the protective white space around it is also stipulated and needs to be calculated proportionally. In terms of color, I have detailed the four-color component and the monochromatic component. If the logo appears in monochrome, the net is 30%, the solid color is 100%, and the color of the word is 100%. If it is colored, it depends on the situation. The font of the logo will be reversed, purple or black. In addition, when the logo is reduced to a certain size, it is not allowed to shrink. I specially designed a simplified version of the logo, the lines are specially modified to be available. It needs to be used in the case of reduction. It also stipulates that the color of the logo cannot be modified in any way, and nothing can be attached to it. The font also rigidly specifies the font that needs to be used for the logo."
Mr. Wu pointed out that after designing a good trademark, it will generally be handed over to the customer with the same standard manual that specifies the standard of use. The purpose of this manual is to refer to the person in charge of the internal and external publicity and promotion, even if there is any change in the organization in the future. The receiver can also refer to this standard, and when using the logo, it is appropriate to know. Of course, if the relevant institutions do not follow the internal guidelines and use the trademarks only according to their own preferences, the designers are also undecided, but the problem is that any change in the contents of the trademarks will only make people feel that the institutions are rash and have no system at all. In the end, consumers lose confidence in the brand, and the result is even more worth the loss.