Hong Kong

In Hong Kong, a trademark is a sign which is capable of distinguishing the goods or services of one undertaking from those of another and which is capable of being represented graphically.

Colour marks. Colours rarely indicate product origin and are often challenged for lack of distinctiveness. While some fashion brands use signature colours, registration is difficult unless the colour is highly unusual or tied to specific goods for a niche clientele. Applicants face a heavy evidence burden to prove factual distinctiveness. To improve registrability, it is advisable to incorporate a graphic or textual element when applying for a colour mark. 

Black and white marks. Black and white marks and their coloured versions can be registered as a trademark series if the colour difference is non-distinctive and does not alter the identity of the mark. Use of a black and white mark in colour still qualifies as valid use, allowing the proprietor to oppose later conflicting marks. Registration of a black and white mark also protects against infringing signs in any colour, provided the proprietor can prove similarity between the registered mark and the offending sign.

Pattern marks. Pattern marks can be registered if they are identified by the public to indicate the origin of the fashion products. Evidence is needed to show that the patterns do not only serve decorative purposes. See below for further details on how to protect IPRs in pattern prints.

Position marks. Generally, a position mark is understood as a trademark consisting of the specific way in which the mark is placed on or affixed to the goods. It is a common form of “non-traditional mark” in the fashion industry, especially for embellishments of wearables. 

Shape marks. Generally, there is no material difference between two-dimensional and three-dimensional shape marks for examination purposes. A sign is not registrable if it consists exclusively of:

• a shape resulting from the nature of the goods;
• a shape necessary to obtain a technical result; or
• a shape giving substantial value to the goods.

“Made in”. Marks consisting exclusively of geographical origins are not registrable. Also, fashion brands are advised to make sure that the “Made in” sign is accurate, otherwise it will be regarded as deceptive and not registrable.

Unregistered marks. Protection for unregistered trademarks is limited. The owner of a well-known trademark may oppose the registration of an identical or similar mark or apply for an injunction against the use by another person. Where there is a goodwill associated with the unregistered trademark, the mark is also protected by the tort of passing off.

Fashion designs are protected under the Registered Design Ordinance (Cap. 522), granting owners’ rights to stop others from making, importing, using, selling, or hiring the design. Jewellery and watch designs are typically registered. A design includes any shape, configuration, pattern, or ornament applied to a product by industrial process. Both 2D and 3D designs are protected if they are new, visually appealing, and not against public order or morality.

Fashion drawings, sketches and so on are artistic works that enjoy protection under the Copyright Ordinance (Cap. 528) (CO), provided they satisfy the requirements of originality and labour, skill and effort. No aesthetic element is required for the work to be copyrighted. The CO has adopted an open copyright system, i.e. the author need not be domiciled, resident or incorporated in Hong Kong to own Hong Kong copyright.

Patent. Technologies (e.g., fabric making) may be protected as patents. An invention that is new, involves an inventive step and is capable of industrial application is generally patentable (e.g., a Containerized Garment Recycling And Manufacturing System (Patent No.: HK1263368)).

Geographical indication (GI). GIs may be protected as certification marks (e.g., TM no. 300310021 for the Thai Silk product standards of Thai Silk Blend) or collective marks (e.g., TM no. 301993537 for Imabari towels). Falsely indicating the geographical origin may also be an offence under the Trade Description Ordinance (Cap. 362) (TDO).

Licence agreements

Fashion manufacturers use brand owners’ IPRs during production, so a licence is required. This may be a standalone agreement or part of a broader manufacturing contract. Key terms include:

• scope of licensed IPRs (e.g., trademarks, patented technology, product designs), often detailed in a schedule;
• exclusivity, transferability, and royalty status;
• restrictions on use; and
• manufacturer’s obligation not to claim ownership or impair rights.

Trademark, design, or patent licences are ineffective against third parties until registered. Similarly, unregistered exclusive licences limit the licensee’s ability to recover damages or profits for infringement.

Non-disclosure agreements (NDAs)

NDAs are important in preserving the confidentiality of fashion designs before a product launch and before the release of crucial supply/distribution information. Usual provisions include scope of confidential information, confidentiality obligations, permitted/mandatory disclosures, return/destruction of confidential information, acknowledgment of inadequacy of damages (to justify a request for injunction or specific performance) and duration of confidentiality.

Subcontract agreements with suppliers/in-house manufacturing

Fashion brands often outsource production to external suppliers, who may subcontract further downstream. The main contractor remains liable to the customer unless obligations are effectively novated to subcontractors with the customer’s consent. Key subcontract clauses include:

• customer’s obligation to provide technology or license IPRs;
• supplier’s duty to provide samples for approval;
• supply and purchase obligations;
• quality, packing, and delivery standards;
• customer’s inspection and rejection rights;
• product recall and indemnity for liability;
• customer’s indemnity for IPR infringement claims; and
• whether subcontracting, novation, or assignment is permitted.

If production moves in-house, companies should implement NDAs to protect confidential information such as design sketches, manufacturing methods, product specifications, business strategies, supplier lists, and sourcing terms. Proper contractual and confidentiality measures safeguard brand integrity and mitigate legal risks in the fashion supply chain.

Agency agreement

An agent can create legal relations between a brand owner and third parties, so an agency agreement must clearly define the agent’s authority (e.g., to promote and conclude sales), territory, and exclusivity. Key provisions include:

• obligation to sell at prices and terms set by the brand owner;
• limits on authority to give warranties or incur liabilities; and
• retention of product ownership until sale.

Brand owners typically indemnify agents for liabilities and expenses incurred while acting with reasonable care and within scope, assistance in maintaining IPRs, and product liability. Indemnities may be subject to exclusions, caps, or prompt notice requirements. Where a mercantile agent is appointed — authorised to sell, buy, or raise money on goods in the ordinary course of business — the arrangement is also governed by the Factors Ordinance (Cap. 48), which provides additional statutory protections and obligations.

Selective distribution online in high-end fashion and trademark protection

High-end fashion brands often use selective distribution systems to protect brand image, supplying products only to approved distributors. Online sales and promotions require fashion suppliers to grant broad IPR licences for advertising and marketing, while distributors must acknowledge the fashion suppliers’ ownership of such rights. Agreements typically address exclusivity, duration, product specifications, order volumes, distribution obligations, advertising standards, and payment terms. Competition law risks should be considered, particularly where restrictions affect online channels.

Recent global disruptions — including COVID-19, the 2021 Suez Canal blockage, geopolitical conflicts, and tariff changes — have highlighted the importance of robust force majeure clauses, which should clearly define triggering events, notice requirements, and consequences to mitigate risk for both brands and distributors.

Co-branding and co-marketing

The contractual structure of a co‑branding arrangement — whether brand dominance, equal prominence, joint venture or cross‑licensing — shapes key clauses. These include contributions to joint campaigns (e.g., minimum advertising spend, social media posts), allocation of responsibilities for manufacture, supply, marketing and sales, and reciprocal IPR licences.

To prevent dilution, usage guidelines should govern trade mark size, placement, notices and prior approval rights. Payment may take the form of revenue or profit‑sharing, fixed sums, royalties, commissions or milestone payments; revenue‑sharing requires clear definitions of allowable costs and sales booking obligations. Morality clauses are also common, allowing termination if one brand’s controversy harms the other, and contracts often exclude liability limits for reputational damage caused by product defects or IPR disputes. Where new marks are created, a co‑existence agreement should address consent, territorial and product limitations, and restrictions on assignment or transfer of rights.

Franchising and alternative sales model agreements

Hong Kong has no dedicated franchising legislation, therefore, franchise agreements rely on contract law. Typical terms include:

• scope (territory, products, exclusivity, sub‑franchising);
• franchisor obligations (business launch support, product supply, operational systems, procurement assistance, IPR warranties);
• franchisee obligations (adherence to standards, legal compliance, improvements, promotional cooperation);
• IP licence provisions; and
• the franchisor’s step‑in rights upon termination.

For consignment arrangements, key clauses cover:

• sales forecasts;
• minimum purchase;
• storage and return of unsold goods;
• provision of sales records;
• payment for sold items;
• brand obligations to maintain stock and indemnify against IPR claims;
• consignee rights to return defective goods; and
• title/risk transfer.

Pop‑up store leases usually require tenants to pay rent, deposits and utilities, avoid alterations, prohibited uses or sub‑letting, while landlords must insure premises and provide estate management services.

Employing fashion models

When employing fashion models, brands should specify the scope of material to be produced (e.g., still photos, videos). Whilst agreements typically cover editorial rights and IPR ownership, models may request approval rights before publication.

Brand owners should ensure models execute release forms granting permission to publish promotional materials containing their name, image and likeness, and consent to personal data collection and use. The form should release the brand from passing off claims.

Social media, influencers and brand ambassadors/celebrities

Influencers may fail to disclose commercial relationships or provide accurate product information. To avoid unfair trade practice allegations, fashion brands should incorporate disclosure best practices into contracts, requiring influencers to:

• directly state the commercial relationship;
• disclose compensation (paid content/free samples); and
• use clear hashtags ("#Sponsored" instead of "#Thanks[brand]").

Brands should address copyright ownership or licence terms for post-engagement use of promotional works.

To mitigate risks from unfavourable influencer conduct, brands can include a “morality clause”, as discussed above.

Advertising standards, relevant authorities and advertising practice

Hong Kong has no specific fashion advertising standards. However, the TDO prohibits unfair trade practices including:

• false trade descriptions;
• misleading omissions;
• bait advertising;
• bait and switch;
• wrongly accepting payment; and
• aggressive commercial practices.

The Customs and Excise Department enforces the TDO and may seek injunctions or institute criminal proceedings.

The Personal Data (Privacy) Ordinance requires retail companies to inform customers and obtain consent before using personal data (e.g., contact information) for direct marketing purposes.

In addition to the TDO as discussed, other relevant consumer protection rules include: 

• Consumer Goods Safety Ordinance (Cap. 456), which imposes certain safety requirements for consumer goods;
• Sales of Goods Ordinance (Cap. 26),which provides for implied conditions that goods for sale must be of merchantable quality, be reasonably fit for the purposes of purchase, correspond with the description, and (for bulk purchases) correspond with the sample;
• Control of Exemption Clauses Ordinance (Cap. 71), which limits the extent to which a person dealing with a consumer can rely on exemption clauses to avoid civil liability;
• Unconscionable Contracts Ordinance (Cap. 458), which provides for reliefs in unconscionable consumer contracts involving supply of goods or services; and
• common law on contract and tort.

Store layouts are protected by copyright law in Hong Kong as artistic works. The same applies to online store layout. Online store layout may also be protected by the law of registered design as graphical user interface.