Hong Kong is an internationally well-known "Shoppers'
Paradise" and its tourism industry has always been important
to its economy. With the relaxation of Mainland China
individual's travel policy to Hong Kong, Hong Kong has become a
shopping hot spot for Mainland Chinese but at the same time the
Hong Kong Consumer Council received a record 42,000 complaints
mainly from Mainland Chinese in 2008 for malpractices by
In order to protect tourists, local consumers and the tourism
industry, Hong Kong has decided to strengthen its consumer
protection regime and passed the Trade Descriptions (Amendment)
Ordinance 2008 (the "Amendment") on 9 June 2008. The
Amendment provides wider and more effective consumer protection
laws and attempts to deal with malpractices relating to new
products and innovative advertisements by retail vendors, which
were "grey areas" under the old ordinance.
Prior to the Amendment, the Trade Descriptions Ordinance was not
adequate to deal with practices where dishonest retailers induced
consumers to enter into transactions by giving misleading price
indications, making false or misleading representations,
particularly where there are no written records and in the case of
jewelry items and electronic products.
The key changes of the Amendment are :-
1. Definition of "Trade
The definition of "trade description" has been amended
to include matters relating to warranty, after-sales services and
maintenance services. Now, giving false, misleading or incomplete
information, e.g. world-wide warranties for goods or warranties by
official distributor on parallel-imported goods, may constitute an
offence under the Amendment.
2. Price Signs for Goods
Regarding goods that are displayed for sale by reference to
weight unit (e.g. gold products and dried seafood), new provisions
require that retailers must show clearly the actual price of goods
and unit rates.
3. Specified Electronic Products
Sellers are now required to inform customers before making
payment whether the price of five types of electronic products
(i.e. digital audio players, digital camcorders, digital cameras,
mobile phones and portable multimedia players) include basic
False or Misleading Representation on Seller's Connection
with Another Person or Body
Section 13C is a new provision on false or misleading
representations of a seller's connection with or endorsement by
another person or body. Section 13C(1) states that it is a criminal
offence if, in the course of any trade of goods, any person makes a
false representation to any other person that a particular seller
is connected with or endorsed by any individual or body.
Section 13C(2) makes it a criminal offence if the identical or
closely similar name of a reputable individual or body is used in a
way that confuses the customers into believing that the provider of
the goods is connected with or endorsed by such reputable
individual or body. The maker of the representations has positive
obligations to take steps to prevent misleading customers that the
seller is connected with or has been endorsed by the reputable
Sections 13C(4) and (5) state that it is a defence if the person
charged with the offence can prove that he did not know and had no
reason to believe that the representation was false, or, he
reasonably believed that the recipient of the information had not
mistaken the identity of the person or body in the
Major controversies may arise as under section 13C(1) it is not
necessary to establish confusion and damage to the
complainant's goodwill or reputation which would otherwise be
required in a claim of passing-off under the common law. This
section could result in a criminal sanction (whilst only civil
remedy is available in a passing-off action). Further, a
complainant relying on this section does not need to be a
"reputable" person or body and hence criminal offence
could be committed under the Amendment even if the complainant has
no protectable goodwill.
Impact of Intellectual Property Rights Enforcement
The Amendment, which only relates to goods but not services,
came into operation on 2 March 2009 together with some other
related subsidiary legislations. It is seen as a big step forward
in intellectual property rights protection as much sterner
penalties are introduced with lower threshold of proof. However,
concerns over effects of its actual implementation and possible
conflicts with existing common law principles will only be known
Lawyers in our Intellectual Property Department will be happy to
assist you with any queries you may have regarding the above eNews
or on any intellectual properties registration or enforcement
The content of this article is intended to provide a general
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