A trade mark that is refused registration because it is not distinctive can still be registered, if you can show that before the date of application for registration, it has in fact become distinctive as a result of the use made of it. To show that the mark has in fact become distinctive you will need to file evidence in a statutory declaration explaining:

1. what the mark is
2. how it is used
3. that it is used by you, or by another person under licence from you
4. how long you have used it and in what circumstances
5. how it has become distinctive, in other words, that customers recognise the goods or services sold under the mark as your goods or services.

If you use a standard form of statutory declaration, you should expand it by adding the necessary details to explain the points above. The facts you refer to must relate to the period before the date of application for registration to show that the mark has become distinctive before that date. You should support your statements in the declaration by including relevant evidence such as copies or photographs of labels, packaging, brochures or advertisements showing the mark and examples of invoices or customer lists.

If you submit copies of any copyright-protected materials to the Trade Marks Registry at any time for processing your application, please ensure the necessary consent has been obtained: you should only submit copies of copyright-protected materials where the relevant copyright owner(s) has/have consented to the use of such copies by the Trade Marks Registry for the purpose of the administration of the Trade Marks Ordinance and its subsidiary legislation.

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