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HCMP 2471/2011
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO. 2471 OF 2011
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IN THE MATTER OF sections 52(2) and 53(5) of the Trade Marks Ordinance, Cap. 559 (“the Ordinance”) |
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and
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IN THE MATTER OF the registered trade mark “Milky” numbered No. 300051371 registered in the name of Elegant Star International (Holdings) Limited in Class 16 goods |
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BETWEEN
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IMAGE FACTORY LIMITED |
Applicant |
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and |
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REGISTRAR OF COMPANIES |
Respondent
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Before: Hon Sakhrani J in Chambers
Date of Hearing: 5 January 2012
Date of Judgment: 5 January 2012
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J U D G M E N T
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1. The applicant is the owner of the registered trade mark “Milk” in classes 18 and 25 for goods and services. Its application for registration of the applicant’s mark in classes 9, 16, 35 and 41 for goods and services in March 2007 was rejected by the Trade Marks Registry on the ground that there was another mark being trade mark registration no. 300051371 “Milky” registered in class 16 goods which was regarded by the Trade Marks Registry as a similar mark (“the respondent’s mark”) on or about 23 July 2003.
2. The registered owner of the respondent’s mark is a limited company formerly known as Link Dragon Limited (永龍有限公司) (“the company”). The name of the company was changed to Elegant Star International (Holdings) Limited on or about 17 March 2004.
3. The company was dissolved on deregistration on or about 27 June 2008. That being so, the properties of the company including the respondent’s mark are deemed to be bona vacantia and shall belong to the respondent pursuant to section 292 of the Companies Ordinance, Cap. 32.
4. By section 52(2)(a) of the Trade Marks Ordinance, Cap. 559 the registration of a trade mark may be revoked on the ground that the trade mark has not been genuinely used in Hong Kong by the owner or with his consent, in relation to the goods or services for which it is registered, for a continuous period of at least 3 years, and there are no valid reasons for non-use.
5. There is no evidence at all before me to show that the respondent’s mark has been used at any time.
6. The Registrar of Companies who is the respondent in these proceedings has indicated that it will not object to the application of the applicant provided that there will be no order as to costs. That has been agreed by the applicant.
7. I am satisfied on the evidence that the respondent’s mark should be revoked for non-use.
8. I make an order that the registration of the respondent’s mark be revoked.
9. I make no order as to costs as this has been agreed by the applicant and the respondent.
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(Arjan H Sakhrani)
Judge of the Court of First Instance,
High Court |
Mr Kent Yee, instructed by Messrs T. C. Foo & Co., for the Applicant
Respondent, absent
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