The WTO Ordinance expanded the test for infringement so as to encompass use not only in relation to the specific goods or services for which it is registered but also to identical or similar goods or services. The Bill extends this further to grant protection in the case of a trade mark "having a reputation in Hong Kong" even in relation to non-similar goods or services if the unauthorised use takes unfair advantage of the registered mark, or is detrimental to its distinctive character or reputation. Infringement will be assumed without having to prove confusion where the mark is used as registered in relation to the goods or services for which it is registered. Where the mark as used or the relevant goods or services are only similar, the proprietor must show a likelihood of public confusion or association. A further proposal is that infringement need no longer be in writing and will include audible use.
These new proposals should substantially increase the scope of trade mark protection which registration affords.
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