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Hong Kong


TRADE DESCRIPTIONS ORDINANCE
　(CHAPTER 362)
　ARRANGEMENT OF SECTIONS
　　
　　ion
　　I　　　　PRELIMINARY
　　hort title
　　nterpretation
　　pecial provisions applicable to goldware
　　arking orders
　　nformation to be given in advertisements
　　II　　　 FALSE TRADE DESCRIPTIONS OR REPRESENTATIONS AND FORGED
TRADE
　　S
　　pplying a trade description, trade mark or mark to goods
　　ffences in respect of trade descriptions
　　rade descriptions used in advertisements
　　ffences in respect of trade marks
　　False representations as to Royal approval or award. etc.
　　False representations as to supply of goods
　　Prohibited import and export of certain goods
　　Power to exempt goods sold for export
　　III　　　ENFORCEMENT
　　Appointment of authorized officers
　　Power to enter premises and inspect and seize goods and documents
　　Restrictions on the entry and search of domestic premises
　　Power to detain goods by locking or sealing premises or container
　　Powers of arrest of authorized officers
　　Disclosure of information, etc.
　　Offences of obstruction and disclosure of information
　　Penalties
　　Time limit for prosecutions
　　Offences by corporations
　　Offences due to fault of other person
　　Accessory to offences committed outside Hong Kong
　　Samples
　　Evidence by certificate
　　Rule of evidence regarding imported goods with false trade
　　ription
　　Description of trade mark in pleading
　　Defence mistake, accident, etc.
　　Innocent publication of advertisements
　　Costs in proceedings
　　Power to make orders with respect to property in possession of
the
　　n
　　Forfeiture and disposal of certain goods
　　[Repealed]
　　IV　　　 MISCELLANEOUS
　　Trade marks containing trade descriptions
　　Definition Orders
　　Saving for civil rights
　　Compensation for loss of goods seized under section 15 (1) (f)
　Whole document
　　
　　rohibit false trade descriptions, false　marks　and　
misstatements　in
　　ect of goods provided in the course　of　trade;　to　confer　
power　to
　　ire information or instruction relating to goods to be marked on
or to
　　mpany the goods or to be included in advertisements; to　prohibit　
the
　　thorized use of devices or emblems signifying an award by the
Queen or
　　Governor; to restate the law relating to forgery of trade　marks;　
and
　　purposes connected therewith.
　　pril 1981.]
　PART I PRELIMINARY
　　
　　hort title.
　　Ordinance may be cited as the Trade Descriptions Ordinance.
　　nterpretation.
　　In this Ordinance, unless the context otherwise requires--
　　ertisement" includes a catalogue, a circular and a price list;
　　horized officer" means a public officer appointed under section
14;
　　missioner" means the Commissioner of Customs and Excise and any
Deputy
　　ssistant Commissioner of Customs and Excise; (Added, L. N.
294/82)
　　vention country" has the meaning assigned to it by section 13A
(6)　of
　　Trade Marks Ordinance (Cap. 43.);
　　se trade description" means--
　　a trade description which is false to a material degree;
　　a trade description which, though not false, is misleading, that
is to
　　likely to be taken for such an　indication　of　any　of　the　
matters
　　ified in the definition of "trade description" as would be false
to　a
　　rial degree;
　　anything which, though not a trade description, is likely to be　
taken
　　an indication of any of the matters specified　in　the　
definition　of
　　de description" and, as such　an　indication,　would　be　false　
to　a
　　rial degree;
　　a false indication, or anything likely to be taken　as　an　
indication
　　h would be false, that any goods comply with a standard　specified　
or
　　gnized by any person or implied by the approval of any person if
there
　　o such person or no standard so specified, recognized or implied;
or
　　a false indication, or anything likely to be taken　as　an　
indication
　　h would be false, that any goods of any class or type--
　　being goods in respect of which duty is payable under the laws
of Hong
　　, are supplied free of the duty so payable in respect of that class
or
　　of goods; or
　　not being goods in respect of which duty is payable under the laws
of
　　Kong, are supplied free of the duty so payable;
　　ds" includes vessel and aircraft. things attached to land and　
growing
　　s; "goods in transit" means goods which--
　　are brought into Hong Kong solely for the purpose of taking　them　
out
　　ong Kong; and
　　remain at all times in or on the vessel, aircraft or vehicle in
or　on
　　h they are brought into Hong Kong;
　　ort" means to bring, or cause to be brought, into Hong Kong;
　　mises" includes any place and any stall, vehicle, vessel or
aircraft;
　　
　　de description" means　an　indication,　direct　or　indirect,　
and　by
　　ever means given, of any of the following matters with respect
to　any
　　s or parts of goods, that is to say--
　　quantity　(which　includes　length,　width,　height,　area,　
volume,
　　city, weight, and number), size or gauge;
　　method of manufacture. production, processing or reconditioning;
　　composition;
　　fitness for purpose, strength, performance, behaviour or
accuracy;
　　any physical characteristics not included in the preceding
paragraphs;
　　testing by any person and results thereof;
　　approval by any person or conformity　with　a　type　approved　
by　any
　　on;
　　place　 or　 date　 of　 manufacture ,　 production,　
processing　 or
　　nditioning;
　　person by whom manufactured, produced, processed or
reconditioned;
　　other history, including previous ownership or use;
　　de mark" means--
　　a trade mark relating to goods registered in Hong Kong under the
Trade
　　s Ordinance (Cap. 43.);
　　a trade mark registered in the register of trade marks kept　under　
or
　　erved by the Trade Marks Act 1938;
　　a trade mark--
　　registered, or in respect of which an application for
registration has
　　made, in a British territory or a Convention country; and
　　capable of registration in Hong Kong under the Trade Marks　
Ordinance
　　trade mark relating to goods, and
　　) in respect of which a period of 6 months has not expired　since　
the
　　of　the　application　for　the　registration　thereof　in　a　
British
　　itory or a Convention country.
　　(a) For the purposes of this Ordinance, goods shall be deemed to　
have
　　--
　　manufactured in the country in which they last underwent　a　
treatment
　　rocess which changed permanently and substantially the shape,　
nature,
　　or utility of the basic materials used in their manufacture; or
　　produced in the country in which they were wholly grown or mined.
　　The Commissioner may by order specify--(Amended, L. N. 294/82)
　　in relation to any description of goods, what treatment or process　
is
　　e regarded for the purposes of this　Ordinance　as　resulting　
or　not
　　lting in a permanent and substantial change in shape, nature, form　
or
　　ity of the basic materials used in their manufacture;
　　in relation to any description of goods different parts of which
were
　　factured or produced in different countries, or of goods
assembled　in
　　untry different from that in which their parts　were　
manufactured　or
　　uced, in which of those countries the goods are to be regarded
for the
　　oses of this Ordinance as having been manufactured or produced.
　　This subsection shall not apply to goods which are the　subject　
of　a
　　ce published under subsection (2A).
　　The Director-General of Trade may by notice in the Gazette specify
in
　　tion to any description of goods (being goods that are　subject　
to　a
　　me of import or export control specified in the notice) the　place　
in
　　h the goods are to be regarded for the purposes of this　Ordinance　
as
　　ng been manufactured or produced, and any such goods　shall,　for　
the
　　oses of this　Ordinance,　be　deemed　to　have　been　
manufactured　or
　　uced in such place. (Added 96 of 1991, s. 2)
　　
　　For the purposes of this Ordinance, a trade description　or　
statement
　　ished in any newspaper, book or periodical or in any film or sound　
or
　　vision broadcast shall not be deemed to be a trade description
applied
　　tatement made in the course of a trade or business　unless　it　
is　or
　　s part of an advertisement.
　　pecial provisions applicable to goldware.
　　Notwithstanding the definition of "false trade description" in
section
　　trade description which indicates the fineness (whether in parts　
per
　　sand or in carats) of gold shall be a false trade description if　
that
　　cation is false to any extend or degree, except　by　understating　
the
　　ness.
　　For the purpose of construing descriptions relating to the
fineness of
　　--
　　a description indicating that an article, or the metal in an　
article,
　　o many carats shall be presumed to be an indication that　the　
article
　　etal is of gold, and that its fineness is that specified in the　
table
　　he Schedule for that number of carats;
　　paragraph (a) shall not apply if (as in a case where the article
is　a
　　ious stone) the word "carat" is　used　as　a　measure　of　
weight　for
　　ious stones, and not as a measure of fineness.
　　Notwithstanding the definition of "false trade description" in
section
　　
　　a trade description which indicates that any article　(other　
than　an
　　cle of pure gold) is of gold shall be a false trade description
unless
　　article consists solely of gold alloy and--
　　contains not less than 8 carats of gold; or
　　bears a mark clearly indicating in carats, by number or by number
and
　　letters "k", "c" or "ct", the fineness of the gold content; or
　　) bears a mark clearly indicating in parts per thousand　the　
fineness
　　he gold content; and
　　a mark calculated to be taken as an indication of the fineness
of gold
　　n article--
　　which is plated with or enclose in gold alloy or gilded; or
　　to which gold alloy is soldered or　otherwise　affixed,　shall　
be　a
　　e trade description unless it is manifest from the appearance　of　
the
　　cle that the mark refers solely to　the　part　of　the　article　
which
　　ists of gold alloy.
　　Any number of 1 or 2 digits on an article which indicates or　
purports
　　ndicate, or is likely to be taken as an indication of, the fineness
in
　　ts of its gold content shall be a false trade description　unless　
the
　　cle contains at least the same proportion of pure gold as　the　
number
　　s to 24.
　　Any number of 3 digits on an article which indicates　or　
purports　to
　　cate, or is likely to be taken as an indication of,　the　fineness　
in
　　er of parts per thousand of its gold content shall be　a　false　
trade
　　ription unless the　article　contains　gold　of　such　a　
standard　of
　　ness.
　　For the purposes of this section "fineness" means　the　
proportion　of
　　gold in accordance with subsection (4) or　the　number　of　
parts　by
　　ht of gold in accordance with subsection (5) as the case may
require.
　　
　　arking orders.
　　The Governor in Council may by order require that any goods　
specified
　　he order shall be marked with or accompanied by any information
　　ther or　not　amounting　to　or　including　a　trade　
description)　or
　　ruction relating to the goods and, subject to the provisions　of　
this
　　nance, impose requirements for securing that the goods are　so　
marked
　　ccompanied, and regulate or prohibit the supply of goods with　
respect
　　hich the requirements are not complied with; and the requirements　
may
　　nd to the form and manner in which the information or　instruction　
is
　　e given.
　　Where an order under this section is in force with respect to goods
of
　　description, any person who, in the course of any trade　or　
business,
　　lies or offers to supply goods of that description in
contravention of
　　order commits an offence.
　　An order under this section may make different provision for
different
　　umstances and may, in the case　of　goods　supplied　in　
circumstances
　　e the information or instruction required by the order　would　
not　be
　　eyed until after delivery, required the whole or part　thereof　
to　be
　　displayed near the goods.
　　nformation to be given in advertisements.
　　The Governor in Council may by order require that any　
description　of
　　rtisements of any goods specified in the order shall contain or　
refer
　　information　(whether　or　not　amounting　to　or　including　
a　trade
　　ription) relating to such goods and subject to the provisions of　
this
　　nance impose requirements as to the inclusion of that　
information　or
　　n indication of the means by which it may be obtained.
　　An order under this section may specify the form and manner　in　
which
　　such information or indication is to be included in
advertisements　of
　　description　and　may　make　 different　 provision　 for　
different
　　umstances.
　　Where an advertisement of any goods to be supplied in　the　
course　of
　　trade or business fails to comply with any requirement　imposed　
under
　　section, any　person　who　publishes　the　advertisement　
commits　an
　　nce.
　PART II FALSE TRADE DESCRIPTIONS　OR　REPRESENTATIONS　AND　
FORGED　TRADE MARKS
　　
　　pplying a trade description, trade mark or mark to goods.
　　A person applies a trade description or trade mark or mark to goods
if
　　
　　affixes or annexes it to or in any manner marks it on or　
incorporates
　　ith--
　　the goods themselves; or
　　anything in, on or with which the goods are supplied;
　　places the goods in, on or with anything which the　trade　
description
　　rade mark or mark has　been　affixed　or　annexed　to,　marked　
on　or
　　rporated with, or places any such thing with the goods;
　　uses the trade description or trade mark or mark in any manner　
likely
　　e taken as referring to the goods; or
　　makes in any affidavit, declaration or writing any　statement　
to　the
　　ct that a trade description or trade mark or mark is applicable
to the
　　s.
　　
　　An oral statement may amount to the use　of　a　trade　
description　or
　　e mark or mark.
　　Where goods are supplied in pursuance of a request in　which　a　
trade
　　ription or trade mark or mark is used and the circumstances　are　
such
　　o make it reasonable to infer that the goods　are　supplied　as　
goods
　　esponding to that trade description or trade mark or mark, the　
person
　　lying the goods shall be deemed to have applied that trade
description
　　rade mark or mark to the goods.
　　ffences in respect of trade descriptions.
　　Subject to the provisions of this Ordinance, any person who--
　　in the course of any trade or business--
　　applies a false trade description to any goods; or
　　supplies or offers to　supply　any　goods　to　which　a　false　
trade
　　ription is applied; or
　　has in his possession　for　sale　or　for　any　purpose　of　
trade　or
　　facture any goods to which　a　false　trade　description　is　
applied.
　　its an offence.
　　A person exposing goods for supply or having goods in　his　
possession
　　supply shall be deemed to offer to supply them.
　　Subject to the provisions of this Ordinance any person who
disposes of
　　as in his possession any die, block, machine, or other instrument　
for
　　purpose of making, or applying to　goods　a　false　trade　
description
　　its an offence unless he　proves　that　he　acted　without　
intent　to
　　aud.
　　rade descriptions used in advertisements.
　　The following provisions of this section shall have effect where
in an
　　rtisement a trade description is used in　relation　to　any　
class　of
　　s.
　　The trade description shall be taken as referring to all goods
of　the
　　s, whether or not in　existence　at　the　time　the　
advertisement　is
　　ished--
　　for the purpose of determining whether an offence has　been　
committed
　　r section 7 (1) (a) (i); and
　　where goods of the class are supplied or offered to be supplied　
by　a
　　on publishing or displaying the advertisement, also for the
purpose of
　　rmining whether an offence has been committed under section 7 (1)
(a)
　　.
　　In determining for the purposes of this section whether any goods　
are
　　class to which a trade description used in an advertisement　
relates,
　　rd shall be had not only to the form and content of the　
advertisement
　　also to the time, place, manner and frequency of its　publication　
and
　　other matters making it likely or unlikely that a person to　whom　
the
　　s are supplied would think of the goods as belonging to the　class　
in
　　tion to which the trade description is used in the advertisement.
　　
　　ffences in respect of trade marks.
　　Subject to the provisions of this Ordinance, any person who--
　　forges any trade mark;
　　falsely applies to any goods any trade mark　or　any　mark　so　
nearly
　　mbling a trade mark as to be calculated to deceive;
　　makes any die, block, machine or other instrument for the　
purpose　of
　　ing, or of being used for forging, a trade mark;
　　disposes of or has in his possession any die, block, machine or　
other
　　rument for the purpose of forging a trade mark; or
　　causes to be done anything referred to in paragraph (a), (b), (c)
or
　　commits an offence unless he proves that he acted without　intent　
to
　　aud.
　　Subject to the provisions of this Ordinance, any person who　
sells　or
　　ses or has in his possession for sale or for any purpose of　trade　
or
　　facture, any goods to which any forged trade mark is　applied,　
or　to
　　h any trade mark or mark so nearly resembling a trade mark　as　
to　be
　　ulated to deceive is falsely applied, commits an offence.
　　For the purposes of this section, a person shall be deemed--
　　to forge a trade mark who either--
　　without the assent of the proprietor of the　trade　mark,　makes　
that
　　e mark or a mark so　nearly　resembling　that　trade　mark　as　
to　be
　　ulated to deceive; or
　　falsifies any genuine trade mark, whether　by　alteration,　
addition,
　　cement or otherwise;
　　falsely to apply to goods a trade mark who without the assent　of　
the

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