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What is considered as a trademark in law?

A trademark is a mark that is used to promote and identify the owner's goods or services and to enable the public to distinguish them from the goods or services of other traders. It may be a logo or device, name, signature, word, letter, numeral, smell, figurative elements or combination of colors and includes any combination of such signs and 3-dimensional shapes provided that it must be represented in a form which can be recorded and published, such as by way of drawing or description.
　

Benefits of Registration of a Trademark

Registration of a trademark will give the owner of a trademark the right to prevent third parties from using his mark, or a deceptively similar mark, without his consent for the goods or services for which it is registered or for similar goods or services. For unregistered trademarks, owners have to rely on common law for protection. It is more difficult to establish one's case under common law.

What trademark can be registered?

A trademark can be registered if it is:-

1. the name of a company, individual or firm represented in a
    special manner;
2. the signature (except in Chinese characters) of the applicant;
3. an invented word;
4. a word that is not either descriptive of the goods or services
    for which the trademark is used or is not a geographical
    name or is not a surname; or
5. any other distinctive mark.

A trademark when registered will last for a period of 10 years and can be renewed indefinitely for successive periods of 10 years.

It is advisable to do a trademark search before filing the application to ensure that no similar trademark has been registered. It takes about 2 months for the Trademark Registry to respond to an application. If the Trademark Registry approves the application, advertisement has to be placed in the Trademark Journal to see if any third party will raise any objection. If no objection is raised within 3 months, the application will proceed to registration. The effective date of the registration will be back dated to the date of the application.

However, if the Trademark Registry does not approve the application and raise objections, it is possible to raise counter objections and persuade the Trademark Registry to withdraw their objections. Discussing these objections and counter objections will take considerable time. The application in such situation will take more than 6 months.

1.  name of the applicant
2.  address of the applicant
3.  nationality or country of incorporation of the applicant
4.  trade or business of the applicant
5.  presentation/copy of the trademark
6.  desired class of registration or details of goods or
     services within those classes which are traded

The above has not covered areas such as renewal/assignment of trademark, change of name/address of registrant, reissue of registration certificate, removal of registration, obtaining certified copies, objecting to registration of other trademarks, recording of license contract, review on refusal, review on the decision of opposition, adjudication on dispute, applying for cancellation of registration, review on the decision of cancellation, and review on refusal of renewal/assignment. Should you require such information, we would be pleased to advise. Contact us.

TRADEMARK REGISTRATION IN CHINA

The trademark application procedure is more or less the same in China. We therefore have not set out separately the relevant procedures herein. Should you have any query please do not hesitate to contact us.

Please note that there is one important difference between China & Hong Kong regarding trademark protection.  China places great emphasis on registration and only those who have registered their trademarks will be given protection.  Whereas in Hong Kong unregistered trademark still have protection under common law, even though it is more difficult to establish to one's case under common law.  In China, the first who registers a trademark will have priority in claiming ownership of the trademark.  It is therefore always advisable to register your trademark in China in order to secure priority and ownership of the trademark.

We are pleased to provide registration information for other countries upon request.

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