@eLaw.com.hk by yip tse & tang, solicitors + notaries 葉謝鄧律師行

Provisions as to confidential disclosure, etc.

An application for the registration of a design shall not be refused, and the registration of a design shall not be invalidated, by reason only of:
(a) the disclosure of the design by the owner to any other person in such circumstances as would make it contrary to good faith for that other person to use or publish the design;

(b) the disclosure of the design in breach of good faith by any person other than the owner of the design;

(c) in the case of a new or original textile design intended for registration, the acceptance of a first and confidential order for goods bearing the design; or

(d) the communication of the design by the owner to a government department or to any person authorized by a government department to consider the merits of the design, or of anything done in consequence of such a communication.

An application for the registration of a design shall not be refused, and the registration of a design shall not be invalidated, by reason only:

(a) that a representation of the design, or any article to which the design has been applied, has been displayed, with the consent of the owner of the design, at an official international exhibition;

(b) that after any such display as is mentioned in paragraph (a), and during the period of the exhibition, a representation of the design, or any article to which the design has been applied, has been displayed by any person without the consent of the owner; or

(c) that a representation of the design has been published in consequence of any such display as is mentioned in paragraph (a), if the application for registration of the design is made not later than 6
months after the opening of the exhibition.

Here, "official international exhibition" (正式國際展覽) means an official, or officially recognized, international exhibition falling within the terms of the Convention on International Exhibitions signed at Paris on 22 November 1928, and any protocols to that Convention, as revised or amended from time to time.

Computer programs, protected layout-designs (topographies) and designs for articles of a primarily literary or artistic character

Computer programs and protected layout-designs (topographies) are not registrable.

Provision may be made by rules for excluding from registration under this Ordinance designs for such articles of a primarily literary or artistic character as the rules may specify.

Designs contrary to public order ("ordre public") or morality are not registrable

A design the publication or use of which would be contrary to public order ("ordre public") or morality is
not registrable.

The publication or use of a design shall not be considered to be contrary to public order ("ordre public") merely because it is prohibited by any law in force in Hong Kong.

Designs are not registrable if appearance of article is not material

A design is not registrable in respect of an article if the appearance of the article is not material, that is, if aesthetic considerations are not normally taken into account to a material extent by persons acquiring or using articles of that description, and would not be so taken into account if the design were to be applied to the article.

Registrable designs

A design which is new may, upon application by the person claiming to be the owner, be registered in respect of any article or set of articles specified in the application.

A design for which an application for registration is made shall not be regarded as new if it is the same as:

(a) a design that has been registered in pursuance of a prior application, whether or not that design has been registered in respect of the same article for which the application is made or in respect of any other article; or

(b) a design that has been published in Hong Kong or elsewhere before the filing date of the application, whether or not that design has been published in respect of the same article for which the pplication is made or in respect of any other article, or if it differs from such a design only in immaterial details or in features which are variants commonly used in the trade.

The Registrar may, in such cases as may be prescribed, direct that for the purpose of deciding whether a design is new an application for registration shall be treated as made on a date earlier or later than that on which it was in fact made.

Defences to Product Liability

A defendant in a product liability action can raise many of the traditional tort defences.

A plaintiff's own negligence may reduce the potential damages based upon the degree of the plaintiff's comparative fault. That is the concept of contributory negligence.

If a person knowingly and unreasonably assumes the risk of a known danger, the manufacturer cannot be liable for the injuries that result. Thus, a person who intentionally pointed the laser beam to his eye and thereby hurt will not be able to recover injuries from the outlet maker. Some products, such new drugs like depressant, sex stimulant, may be dangerous, but not unreasonably so. To avoid liability, the dangers (such as side effect) should be made known to the public, and the seller clearly warns of the dangers, and properly packages and labels the product. Whether measures are adequate depend individual cases.

A manufacturer might also not be held liable if someone uses a product in an unforeseeable or unreasonable manner. For example, a person is injured on use of an electrical fan whose protective shield has been removed.

In cases of design defects, manufacturers may be able to escape liability on the basis of the "state of the art" defense, which asserts that the manufacturer has used the best available technology and design to make the product as safe as possible. If there is no safer known design, a manufacturer might not be liable for design defects. That is a matter of evidence that the manufacturer has to establish when defending his case.

Liable Parties in Product Liabiltiy

Generally, any person or entity in the chain of distribution can be liable for a defective product, including manufacturers, distributors, wholesalers and retailers.

Types of Defects

To recover in a products liability action, an injured party must first establish that a product was defective when it left the defendant's control. There are three types of defects.

Manufacturing Defect.

A manufacturing defect is one that is a result of the way a product was made, rather than the way it was designed or labeled. For example, if a manufacturer failed to treat an electrical fan with electroncution-proof as designed, the fan have a manufacturing defect. A chair that breaks when being seated is an example of a defective product. Manufacturing defects, design defects or inadequate warnings can make a product defective. In addition, a product may be considered defective if it fails to meet minimum legal standards for a product. However, the fact that a product meets minimum legal standards does not necessarily protect a manufacturer or seller from liability.

Design Defect.

A design defect is one that is a result of the way a product was designed, rather than the way it was made or labeled. For example, if a company manufactures children toys which, because of a design flaw, will crack when dropped, the toys have a design defect. The manufacturer may be liable for loss e.g. a child swallow the cracked pieces and throat injured.

Failure to Warn.

Finally, a product may also be defective if a manufacturer fails to adequately warn about non-apparent risks involved in using a product. The impact of failure to warn claims can be seen in the multitude of warning labels affixed to all sorts of consumer products. The apparent example is laser pointer which discharge laser beams that can hurt one's eyes by direct contact.

Types of Product Liability

Products liability is generally based on one of 3 theories:

strict liability (not applicable in Hong Kong),

negligence (tortious liability), or

breach of warranty (contractual liability).

Hong Kong does NOT have a strict liability against a manufacturer etc, although that has once been proposed to have by the Law Reform Commission. Most states in the United States impose strict liability on the manufacturer or seller of a product that is defective in a way that makes the product unreasonably dangerous. Strict liability means that the manufacturer or seller is liable for injuries caused by an unreasonably dangerous defective product, even if he or she used all possible care in the preparation and sale of the product.

In Hong Kong that do not impose strict liability for defective products, an injured person can recover for injuries caused by a defective product if they can show that the manufacturer was negligent, or breached a warranty. Negligence means that the manufacturer or seller did not act with reasonable care to ensure the safety of the product. The difference between strict liability and negligence is that, under a negligence standard, a person will not be liable for a defect if he or she took all reasonable care to avoid or detect the defect, while under strict liability, if there was an unreasonably dangerous defect in the product, no amount of care will constitute a defence.

An injured party can recover on a theory of negligence if the evidence will support it. Which theory is relied on is important in the calculation of damages: damages an include compensatory damages. Breach of warranty is between the injured party and the sales shop.

Product Liability

Hong Kong laws do not have an independent cause of action on product liability.

Products liability is adjunct of the law of tort law. It deals with and relates to a manufacturer's or seller's liability for injuries suffered by a purchaser, user, or bystander as a result of a defective product. Technological products like computer hardware or software may give rise to product liablity. Products liability is based on the principle that a person who release and market a product in the public owes a duty of care to the person who first purchases the product, but also to anyone else who might foreseeably come into contact with it. This the the famous 'foresight test' in Donoghue v Stevenson.

It can also be based on contractual breach of a warranty clause in a consumer purchase.