Intellectual
Property Developments
in the Greater China Region
edited by
Andy Y. Sun,
Executive Director, and
the staff of Asia Pacific Legal Institute
HONG KONG SAR
 Legislative
Council Enacted the Electronic Transactions Ordinance
Trade
Marks Bill Seeks to Legalize Parallel Imports
(SAR = Special Administrative Region of the People's
Republic of China)
To promote the development of electronic commerce,
the Hong Kong Government launched an Electronic Service Delivery (ESD)
scheme. The first phase of ESD will be implemented in the latter half
of 2000, public services will be available on-line, 24 hours a day,
seven days a week.
In parallel, the Government introduced the Electronic Transaction Bill
on July 14, 1999 to address public concerns about the security and certainty
of electronic transactions, e.g., the legal status of electronic
records and digital signatures, authentication of the parties to electronic
transactions, the confidentiality and integrity of electronic messages
transmitted over open communications networks and non-repudiation of
electronic transactions. To provide a secure and trusted environment
for the conduct of electronic transactions, Government has established
a public key infrastructure (PKI) in Hong Kong through the Hongkong
Post, which started to provide public certification services on a non-exclusive
basis by the end of 1999. With the issue of digital certificates by
certification authorities (CAs) and through the use of digital signatures
and public/private key encryption, individuals and businesses will be
able to establish the identity of the opposite party in electronic transactions,
authenticate electronic messages received, ensure that the confidentiality
and integrity of electronic messages have not been breached and safeguard
against the repudiation of electronic transactions.
The Legislative Council enacted
the bill on January 5, 2000.
[English text of Electronic Transactions Ordinance
(HTTP version)]
The Intellectual
Property Department of the Hong Kong Special Administrative Region (SAR)
proposed a new Trade Marks Ordinance Bill on April 16, 1999. Noticeably
is Clause 19, which clearly adopts the doctrine of international
exhaustion on trademark rights:
"(1) Notwithstanding
section 17 (infringement of registered trade mark), a registered trade
mark is not infringed by the use of the trade mark in relation to goods
which have been put on the market anywhere in the world under
that trade mark by the owner or with his consent (whether express or
implied or conditional or unconditional).
(2) Subsection (1)
does not apply where the condition of the goods has been changed or
impaired after they have been put on the market, and the use of the
registered trade mark in relation to those goods is detrimental to the
distinctive character or repute of the trade mark."
Not surprisingly, this proposal has generated
heated debates within and without Hong Kong SAR. A government's
assessment report  issued in November
1999 concluded that this amendment will benefit the free flow of commerce
and ultimately the consumers, since parallel imports involve genuine
goods that have already received the right holder's permission to enter
the flow of commerce (implied license doctrine). The consumers
groups by and large concurred. Ironically and interestingly, the
business sector have not yet launched a full-scale lobbying efforts
against this provision, which prompted Selina Shuk-yee Liang Chow (Liberal Party), Chairwoman of
the Committee on Rules and Procedure of the Legislative Council, to
call on them to respond quickly in light of the growing trend that is
clearly more favorable to the legalization of trademark parallel imports.
The last public hearing on this issue is
scheduled on January 18, 2000.
[English text of draft Trade Mark Ordinance (April
16, 1999, 266k/86 pages) and the
second draft of Trade Mark Rules
(February
8, 2000, 86 pages)]
*This list is
intended to serve as a starting point for those who wish to conduct international
comparative researches on intellectual property and/or trade law issues.
As many of these sites also provide extensive links to other sites, our
list is not an attempt to duplicate their efforts, rather to compliment
them. Special indications are made for sites that are bilingual, multilingual
or in foreign language.
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