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Designs Bill 2003

Part 3 Relief from unjustified threats

   

77   Application for relief from unjustified threats

             (1)  If a person is threatened by another person (the respondent ) with infringement proceedings, or other similar proceedings, in respect of a design, an aggrieved person (the applicant ) may apply to a prescribed court, or to another court that has jurisdiction to hear and determine the application, for:

                     (a)  a declaration that the threats are unjustified; and

                     (b)  an injunction against the continuation of the threats; and

                     (c)  the recovery of damages sustained by the applicant as a result of the threats.

             (2)  A threat mentioned in subsection (1) may be by means of circulars, advertisements or otherwise.

             (3)  If a certificate of examination has not been issued in respect of a design, a threat to bring infringement proceedings, or other similar proceedings, in respect of the design is an unjustified threat for the purposes of this section.

78   Court’s power to grant relief

                   A court may grant the relief sought by an applicant under section 77, unless the respondent satisfies the court that:

                     (a)  the design concerned is registered, has been examined and a certificate of examination has been issued; and

                     (b)  the acts about which the threats were made infringe, or would infringe, the registered design.

79   Counter-claim

             (1)  The respondent in proceedings under section 77 in respect of a design may apply, by way of counter-claim, for relief to which the respondent would be entitled in separate infringement proceedings against the applicant in respect of the design.

             (2)  If the respondent applies under subsection (1) by way of counter-claim, the applicant may, without making a separate application under section 93, apply for revocation of the registration of the design.

             (3)  The provisions of this Act relating to infringement proceedings apply, with the necessary modifications, to a counter-claim under subsection (1).

             (4)  The provisions of this Act relating to proceedings for the revocation of the registration of a design apply, with the necessary modifications, to an application under subsection (2).

80   Mere notification of registration not a threat

                   The mere notification of the existence of a registered design does not constitute a threat of infringement proceedings for the purposes of section 77.

81   Legal practitioners, registered patent attorneys and registered trade marks attorneys

                   A legal practitioner, a registered patent attorney or a registered trade marks attorney is not liable to proceedings under section 77 in respect of an act done in a professional capacity on behalf of a client.



 

Chapter 7 Jurisdiction and powers of courts