XN000022-1996-04-24 — Page 37

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Mr President, I would now like to turn to the third major amendment which is related to rental right for films. The Administration originally proposed in clause 10 of the Bill new rental right for computer programs, sound recordings and films. During the Bills Committee's deliberations, divergent views have been expressed by the motion picture industry and the video rental business as to whether the new rental right is a requirement under the TRIPS Agreement and whether it would be in the consumers' interests to provide for rental right for films. Having considered the views expressed, the Administration has agreed to exclude films from the rental right provisions in the present exercise and clarify the meaning of rental for sound recordings and computer programs so as to tie in with the language used in the TRIPS Agreement. The issue of rental right for films will be reconsidered in the context of the comprehensive law reform on copyright.

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The last major amendment is concerned with the definition of trade mark for purpose of registration. The proposed new definition of trade mark in clause 18 of the Bill has been criticised as being too wide because the word "sign" used in the definition of trade mark could be widely interpreted to include any sounds and smells. There have been concerns that such a piecemeal revision of the definition of "trade mark" might have undesirable implications on other areas of the existing trade marks law.

The Administration has explained to the Bills Committee the rationale for the proposal in clause 18 of the Bill, that is, to place it beyond any doubt that the new definition of "trade marks" would be fully compatible with the requirements of the TRIPS Agreement. Indeed, there have been similar legislative amendments in other common law jurisdictions to allow sounds and smells to be registrable as trade marks. Nevertheless, in view of the need for an early enactment of this Bill and the opportunity to reconsider the drafting of the definition of "trade mark" in the ongoing comprehensive trade marks law reform, we have agreed to revise the proposed definition of "trade mark", as set out in the Committee Stage amendment to clause 18. to follow more closely the language used in the TRIPS Agreement.

Under the revised definition, any sign that is visually perceptible and capable of being represented graphically may be registrable as "trade mark". The question of whether a sound or smell might still be registrable as a "trade mark" would be something to be decided by the Registrar of Trade Marks. The Registrar's decision is subject to appeal in court. The definition of "trade mark" would be considered again as part of the comprehensive review of the Trade Marks Ordinance.

Mr President, with these remarks and subject to the amendments I intend to propose at the Committee Stage, I commend the Bill to Members. Thank you.

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