[HK] Defects in Evidence for Hong Kong Trademark Cases
July 18, 2018
In all the proceedings before the Hong Kong Trademarks Registry, “evidence” is how the Registrar is to consider any fact, either alleged in any statement of the case or counter-statement or of factual distinctiveness of a trademark, upon which he has to adjudicate.
From time to time, there are cases that parties in the relevant proceeding would err in including purported evidential materials in the pleadings, as an attachment or otherwise.
The Registry would generally inform the parties’ involved to rectify the errors in the documents before proceeding further with the subject matter. However, what the Registry would provide is only pieces of advice that depend on whether the parties involved would adopt or not.
The other more frequently encountered defects in evidence are concerning the formalities of the evidence. Trademarks Rules 79 stipulates that:
Where under the Ordinance or these Rules evidence may be admitted by the Registrar in any proceedings before him, the evidence shall be filed by way of a statutory declaration or affidavit.
If a statutory declaration is made in Hong Kong, the form is governed by the Oaths and Declarations Ordinance (Cap. 11).
In other words, there are specific formality requirements for the evidence to be admissible before the Hong Kong Trademarks Registry.
Save for the strict requirements stated above, Section 78 of the Trademark Ordinance provides:
Except as otherwise provided in this Ordinance, the Registrar is not bound by the rules of evidence in any proceedings before him under this Ordinance and may inform himself of any matter that is before him in any way that he reasonably believes to be appropriate.
Judicial decisions also point to the favorability of acceptance of evidence albeit the defects as to the formality requirements.
However, since whether a piece of evidence is to be taken into account at the hearing and at what weight are inevitably the decisions for the Hearing Officer concerned, it is always advisable whenever any defects in evidence are found, they should be put back in order at the earliest opportunity.