Hong Kong Intellectual Property Rights

Sources of intellectual property law

Hong Kong is a common law jurisdiction and the fundamentals of the intellectual property regime have been inherited from the English system which was followed until the reversion of sovereignty in 1997. Intellectual property rights in Hong Kong including patents, designs, trade marks and copyright predominantly derive from legislation. However, as in other common law jurisdictions, the judiciary has developed, through precedents, such torts as passing-off, malicious falsehood (trade libel) and breach of confidence. There are no generic unfair competition or fair trading laws.

Hong Kong intellectual property law (post-1997)

At midnight on 30 June 1997, Hong Kong ceased to be a colony of the United Kingdom and sovereignty reverted to China. In terms of the Basic Law which governs Hong Kong's status as a Special Administrative Region of the People's Republic of China, Hong Kong remains as a separate jurisdiction from the rest of China for intellectual property purposes. The intellectual property laws of the People's Republic of China therefore do not apply in Hong Kong and vice versa.

Trade marks

Hong Kong has had an independent trade mark registration system for well over 100 years. The Hong Kong Trade Marks Registry opened its doors in 1873 ¡V two years before the United Kingdom Trade Marks Registry was established. Although it is based closely on the United Kingdom Trade Marks Act of 1994, the current Hong Kong Trade Marks Ordinance (which came into force in 2003) is an independent piece of legislation. The Hong Kong Trade Marks Ordinance places emphasis on the first-to-file system followed in China, which is a departure from the practice under the previous law. The Ordinance specifically recognises rights in well-known trade marks in consistency with Hong Kong's obligations under the Paris Convention.

Patents

There is a separate Hong Kong patent regime and Chinese patents do not automatically cover Hong Kong. The Hong Kong Patent Law provides a re-registration system under which patents originally filed in China, the United Kingdom or the European Community (designating the United Kingdom) may be protected in Hong Kong. The resulting Hong Kong patent is completely independent. It may therefore be amended or revoked in Hong Kong independently of the basic patent. A separate utility model or "short-term patent" system has also been established in Hong Kong. Such applications are filed directly in Hong Kong.

Semiconductor topography protection

The layout of semiconductor circuitry is protected by the Layout-Design (Topography) of Integrated Circuits Ordinance which was enacted in 1994. This provides a copyright-like protection for integrated circuits created after the coming into force of the Ordinance.

Registered designs

The Registered Designs Ordinance 1997 came into force on 27 June 1997 and ushered in a new era in Hong Kong's intellectual properly administration. It replaced the regime which was based on the United Kingdom Designs (Protection) Ordinance and introduced an independent design regime to Hong Kong for the first time. The substantive law of the Ordinance generally follows the steps of the United Kingdom's Registered Design Act 1949. The main differences are that the Hong Kong Ordinance allows for protection of multiple designs under a single application and worldwide novelty is required. A Hong Kong registered design has a maximum life of 25 years from filing, subject to the payment of renewal fees every five years.

Conclusion

Hong Kong is generally regarded as having a comprehensive system for the protection of intellectual property rights. The government has put considerable effort into ensuring that this perception is maintained. In this context, all of Hong Kong's major intellectual property legislation has been overhauled within the last few years and as a result Hong Kong's laws are, for the most part, consistent with internationally accepted standards.