HL Deb 02 November 1988 vol 501 cc332-3

211 Clause 215, page 93, line 13, leave out from 'question' to end of line 18 and insert may apply to the court for an order that an infringing article or other thing be delivered up to him or to such other person as the court may direct.

(2) An application shall not be made after the end of the period specified in the following provisions of this section; and no order shall be made unless the court also makes, or it appears to the court that there are grounds for making, an order under section (Order as to disposal of infringing article, &c) (order as to disposal of infringing article, &c.).

(3) An application for an order under this section may not be made after the end of the period of six years from the date on which the article or thing in question was made, subject to subsection (4).

(4) If during the whole or any part of that period the design right owner—

  1. (a) is under a disability, or
  2. (b) is prevented by fraud or concealment from discovering the facts entitling him to apply for an order,
an application may be made at any time before the end of the period of six years from the date on which he ceased to be under a disability or, as the case may be, could with reasonable diligence have discovered those facts.

(5) In subsection (4) "disability"—

  1. (a) in England and Wales, has the same meaning as in the Limitation Act 1980;
  2. (b) in Scotland, means legal disability within the meaning of the Prescription and Limitation (Scotland) Act 1973;
  3. (c) in Northern Ireland, has the same meaning as in the Statute of Limitations (Northern Ireland) 1958.

(6) A person to whom an infringing article or other thing is delivered up in pursuance of an order under this section shall, if an order under section (Order as to disposal of infringing article, &c.) is not made, retain it pending the making of an order, or the decision not to make an order, under that section.

(7) Nothing in this section affects any other power of the court.'.

Lord Strathclyde

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 211.

Moved, That the House do agree with the Commons in their Amendment No. 211.—(Lord Strathclyde.)

On Question, Motion agreed to.

212 Leave out Clause 216 and insert the following new Clause:

'Order as to disposal of infringing article, &c.

.—(1) Where an infringing article or other thing has been delivered up in pursuance of an order under section 215 an application may be made to the court—

  1. (a) for an order that it shall be forfeited to the design right owner or destroyed or otherwise dealt with as the court may think fit, or
  2. (b) for a decision that no such order should be made.

(2) In considering what order (if any) should be made, the court shall consider whether other remedies available in an action for infringement of design right would be adequate to compensate the design right owner and to protect his interests.

(3) Provision shall be made by rules of court as to the service of notice on persons having an interest in the article or other thing, and any such person is entitled—

  1. (a) to appear in proceedings for an order under this section, whether or not he was served with notice, and
  2. (b) to appeal against any order made, whether or not he appeared;
and an order shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.

(4) Where there is more than one person interested in an article or other thing, the court shall make such order as it thinks just and may (in particular) direct that the thing be sold, or otherwise dealt with, and the proceeds divided.

(5) If the court decides that no order should be made under this section, the person in whose possession, custody or control the article or other thing was before being delivered up or seized is entitled to its return.

(6) References in this section to a person having an interest in an article or other thing include any person in whose favour an order could be made in respect of it under this section or under section (Order as to disposal of infringing copy or other article) or (Order as to disposal of illicit recordings) of this Act or section 58BA of the Trade Marks Act 1938 (which make similar provision in relation to infringement of copyright, rights in performances and trade marks).'

Lord Young of Graffham

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 212.

Moved, That the House do agree with the Commons in their Amendment No. 212—(Lord Young of Graffham.)