Hong Kong is a Special Administrative Region (SAR) of China with a political and economic system of its own. It is an international trading center, recognized by free trade, low tax policies and large export economy. International trade, closely related to intellectual property rights, is Hong Kong’s most important economic activity. Hong Kong is also an important international financial center. The Global Financial Centres Index ranks the world’s top financial centers puts Hong Kong in 6th place as of March 2020, after it fell three slots from being ranked 3rd in the world.
Hong Kong is located in Southern China, and is one of the busiest ports in the world in categories such as shipping movement and cargo handled. Hong Kong has its own system of intellectual property, but its port is part of the trade in counterfeit and pirated goods manufactured mainly in Mainland China.
What is the IP law in Hong Kong?
Hong Kong has executive, legislative and judicial powers devolved from the national government. Its regional government has legislative council which enacts regional law as a separate jurisdiction. As a result, it should be treated separately with regards to protection of intellectual property. It has its own registration and filing system, legal system, and enforcement mechanisms. Intellectual property rights registered in Hong Kong Special Administrative Region (HKSAR) are not automatically protected in the Mainland, and vice-versa. To obtain protection in the Mainland as well as Hong Kong, a separate filing is required. Similarly, Macau, which is also a Special Administrative Region, maintains a separate legal and IP system.
Intellectual property law of Hong Kong is domestic law. This means that intellectual property granted in Hong Kong, such as a trademark, only applies in Hong Kong and in order to obtain protection as registered trademarks in the HKSAR, trademarks must be registered under the Trade Marks Ordinance (Cap. 559). However, Hong Kong is part to various international conventions which have been applied by China and offer protection of the intellectual property rights of persons from other member countries. The Intellectual Property Department is responsible for maintaining the database of registered patents, trademarks and registered designs rights. Records of those IPRs can be searched online on https://esearch.ipd.gov.hk/nis-pos-view/ and other websites address domain names and plant variety rights.
Generally speaking, Hong Kong intellectual property laws, covering patents, trademarks, and copyrights, are consistent with international standards.
What changed under HKSAR’s new patent system?
Hong Kong strives to have its local IP system meet the standards and practices of the international community. As part of this commitment, Hong Kong launched a new patent system in December 2019. Prior to 19 December, 2019 the grant of a standard patent in Hong Kong had been based on the prior grant of a corresponding patent by China National Intellectual Property Administration, European Patent Office (in respect of a patent designating the United Kingdom) or Intellectual Property Office in the United Kingdom. Only after filing in one of these three designated patent offices could the applicant seek patent protection in Hong Kong under the “re-registration” system. The new patent system allows for the re-registration system alongside a route for original grant patent (OGP) system. Now applicants can file standard patent protection by filing applications directly in the HKSAR without the need to file in one of the designated patent offices. Hong Kong also provides for grant of short-term patents for inventions with a shorter commercial viability.
What is the penalty for counterfeits?
Protection of intellectual property rights in the HKSAR mean that counterfeits, copies, and knockoffs that infringe on trademark, copyright, patent or other IP right are Illegal. Hong Kong’s Trade Descriptions Ordinance imposes a penalty of up to HK$500,000 (a little less than $65,000) and up to five years in prison for importers of counterfeit goods.
Why does Hong Kong have so many fakes?
Right across the border from the Hong Kong SAR is China, manufacturer of over 80% of the world’s counterfeit goods. Fakes are produced in China, shipped over to Hong Kong, and sold there or exported through its port. Counterfeits goods also cross the border to and from Mainland China by parallel traders. A few months ago, Hong Kong customs seized HK$13.8 million (US$1.8 million) worth of fake Chinese herbal and Western medicine in the biggest bust of this kind in a decade. The fake medicine was sold mainly to cross-border parallel import traders from the mainland via pharmacies.
Where can you find copies in Hong Kong?
Hong Kong itself is famous for fake designer goods, although they are not sold openly at stores. Counterfeits are easier to spot on Hong Kong’s markets. Mongkok Ladies Market, for example, is Hong Kong’s most famous and popular market, and despite its name it sells clothes for both men and women. Fakes and copies are sold on the market in stalls or by sellers who approach buyers. The most popular items are counterfeit watches and counterfeit handbags. Some other popular items are iPhones, tablets, and other electronics. According to tripsavvy, some fakes carry the real names, while others have labels such as Praada or Luis Vutton.
What role does Hong Kong play in export of fakes?
Chinese merchandise often transships through Hong Kong. According to a USTR 2019 report, China and Hong Kong account for over 80 percent of seizures of counterfeit and pirated goods. Also, “Applying a different methodology, another analysis from the 2019 OECD report analyzed 2016 data and estimated that China and Hong Kong were the source of $322 billion in fake exports, around 63.4 percent of the global total”.
Hong Kong’s trade policy promotes free trade. The Trade and Industry Department of Hong Kong SAR explains Hong Kong’s trade policy: “Hong Kong is a free port. We pursue a free trade policy and do not maintain barriers on trade. No tariff is charged on import or export of goods.” Hong Kong also has a free trade zone. Free trade zones provide less regulations and oversight coupled with infrastructure and space, thus facilitating trade in counterfeit products and pirated goods.
The Hong Kong Trade Description Ordinance prohibits imports and exports of goods bearing counterfeit marks. However, the Ordinance does not apply to “goods in transit”. This makes Hong Kong’s busy free trade zone a port through which counterfeiters can shop their products.
In addition, China together with Hong Kong have been the leading source of seized counterfeit goods shipped by mail or express couriers, connected to e-commerce.
How can I protect my IP rights?
Registered IP rights, such as trademarks, copyright, and patents, are an important tool in protecting your IP rights.
To protect your rights in the digital environment, an effective route of action is to approach the intermediary – the online marketplace or e-commerce platform. The results are much faster and do not involve lengthy and expensive court proceedings.
On online marketplaces, monitoring and reporting counterfeits and other IP infringements lie mainly with the IP owners. This is a heavy burden, especially given the number of online channels and the number of listings and sellers globally. In addition, removing a listing does not solve the problem, because infringers can simply open a new one. This makes continuous monitoring critical.
To protect your brand online, you need brand protection strategy. We suggest you consider professional online brand protection services. Wiser Market is an online brand protection agency dedicated to helping brands fight counterfeits, trademark violation, copyright infringements and more. Our anti counterfeit solutions include advanced monitoring technology, team expertise and proactive enforcement to help you fight against brand infringement with quick, effective results all around the world.
Wiser IP Protection in Hong Kong
Wiser Market is an anti-counterfeiting agency. We have developed an advanced system for monitoring eCommerce sites, online marketplaces and social media channels 24/7, in different languages and around the world. Together with our anti-counterfeiting experts, we detect, analyze and enforce our clients’ IP rights worldwide.
With Wiser Market, your brand will have a complete intellectual property protection solution, tailor-made to your intellectual property protection needs.
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