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IV. Trade Marks

A trade mark is any mark (such as a logo) which is capable of distinguishing the goods or services of one trader from those of another. In practice, a consumer tends to treat goods (or services) bearing the same trade mark as goods produced by the same manufacturer (or services offered by the same service provider), even if the identity of the manufacturer (or service provider) is unknown to the consumer. This reflects the function and value of a trade mark, namely, as an indicator of the source of the goods or services.


Some authors differentiate between "trade marks" and "service marks" by using the former only in connection with goods and the latter with services. Such a distinction is not adopted in the Trade Marks Ordinance (Cap. 559 of the Laws of Hong Kong), which uses the term "trade mark" in relation to both goods and services.


A trade mark may or may not be registered. If it is registered under the Trade Marks Ordinance, it is referred to as a "registered trade mark". Registration entitles the owner to enjoy the protection conferred by the Ordinance. If a trade mark is not registered in Hong Kong, it will not be protected under the Ordinance in Hong Kong, even if it has been registered in other countries. An unregistered trade mark is only protected under common law against the action of passing off (see the discussion of passing off under section VI).