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THE HONGKONG GOVERNMENT GAZETTE, DECEMBER 10, 1909.
•
c. 15 s. 37.
37. A registered trade mark may, on the application to Non-user of the Court of any person aggrieved, be taken off the re- trade mark. gister in respect of any of the goods for which it is regis- 5 Edw. 7 tered, on the ground that it was registered by the pro- prietor or a predecessor in title without any bonâ fide in- tention to use the same in connection with such goods, and that there has in fact been no bonâ fide user of the same in connection therewith, or on the ground that there has been no bonâ fide user of such trade mark in connec- tion with such goods during the five years immediately preceding the application, unless in either case such non- user is shown to be due to special circumstances in the trade, and not to any intention not to use or to abandon such trade mark in respect of such goods.
Effect of Registration.
Power of
proprietor.
38. Subject to the provisions of this Ordinance :--
(1) The person for the time being entered in the registered
register as proprietor of a trade mark shall, Tb. s. 38. subject to any rights appearing from such re- gister to be vested in any other person, have power to assign the same, and to give effectual receipts for any consideration for such assign-
ment.
(2) Any equities in respect of a trade mark may be enforced in like manner as in respect of any
other property.
39. Subject to the provisions of section 41 of this Ordin- Rights of ance and to any limitations and conditions entered upon prope mark.
proprietor of the register, the registration of a person as proprietor of a Tb. s. 39. trade mark shall, if valid, give to such person the exclusive right to the use of such trade mark upon or in connection with the goods in respect of which it is registered; Pro- vided always, that where two or more persons are regis- tered proprietors of the same (or substantially the same) trade mark in respect of the same goods, no rights of ex- clusive user of such trade mark shall, except so far as their respective rights shall have been defined by the Court, be acquired by any one of such persons as against any other by the registration thereof, but each of such persons shall otherwise have the same rights as if he were the sole registered proprietor thereof.
40. In all legal proceedings relating to a registered Registration trade mark (including applications under section 35 to be primâ
facie of this. Ordinance) the fact that a person is registered evidence of as proprietor of such trade mark shall be primâ facie validity. evidence of the validity of the original registration of Ib. s. 40, such trade mark and of all subsequent assignments and transmissions of the same.
to be
41. In all legal proceedings relating to a registered Registration trade mark (including applications under section 35 conclusive of this Ordinance) the original registration of such after seven trade mark shall after the expiration of seven years from years. the date of such original registration (or seven years from 16. 8. 41. the passing of this Ordinance, whichever shall last happen) be taken to be valid in all respects unless such original registration was obtained by fraud or unless the trade mark offends against the provisions of section 11 of this Ordinance.
Provided that nothing in this Ordinance shall entitle the proprietor of a registered trade mark to interfere with or restrain the user by any person of a similar trade mark upon or in connection with goods upon or in connec- tion with which such person has, by himself or his predecessors in business, continuously used such trade mark from a date anterior to the user of the first mentioned trade mark by the proprietor thereof or his predecessors in business.
proof of
42.-(1) The Court may, on the application in writing Removal of made within seven years from the registration of a trade mark on mark in Hongkong by any person aggrieved by such prior registration, remove such trade mark from the Register, if registration it is proved to the satisfaction of the Court, that such trade in country mark is identical with, or so nearly resembles as to be of origin. calculated to deceive, any trade mark which was, prior to the registration in Hongkong of the first mentioned trade mark, registered (in respect of goods of the same descrip- tion as those in respect of which the first mentioned trade 'mark is registered in Hongkong) in a country or place from
which goods of that description originate.
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