New offence under the Trade Descriptions Ordinance

The Trade Descriptions (Amendment) Ordinance 2008, which was published in the Government Gazette on 27th June 2008 but has yet to come into force, introduces a new offence of false or misleading representation in regard to a seller's connection with another party, which is akin to statutory passing off.

According to the ordinance, it is an offence for a person to make a false representation to any other party that a particular seller who sells any goods in the course of any trade or business is connected with or endorsed by any individual or body.

However, that person has a valid defence if he or she can prove that he or she did not know or had no reason to believe that the representation was false.

It is also an offence for a person who, in connection with the supply, possible supply or promotion of the supply of any goods, makes a representation to another person that the seller is connected with or endorsed by any individual or body if that person ought reasonably to expect that the information recipient is likely to mistake the subject individual or body for another individual or body that is widely known to be of good standing and reputation because the name of the subject individual or body is identical with, or very similar to, that of the reputable individual or body, but fails to take reasonable steps to prevent the information recipient from believing that the seller is connected with or endorsed by the reputable individual or body.

However, that person has a valid defence if he or she can prove that he or she believed on reasonable grounds that the information recipient did not mistake the subject individual or body for the reputable individual or body.