§ 342 Schedule 4, page 152, line 2, at end insert—
§ 'ARRANGEMENT OF SECTIONS
§ Registrable designs and proceedings for registration
§ Section
§ 1. Designs registrable under Act.
§ 2. Proprietorship of designs.
§ 3. Proceedings for registration.
§ 4. Registration of same design in respect of other articles.
§ 5. Provision for secrecy of certain designs.
§ 6. Provisions as to confidential disclosure, &c.
§ Effect of registration, &c.
§ 7. Right given by registration.
§ 8. Duration of right in registered design.
§ 8A. Restoration of lapsed right in design.
§ 8B. Effect of order for restoration of right.
§ 9. Exemption of innocent infringer from liability for damages.
§ 10. Compulsory licence in respect of registered design.
§ 11. Cancellation of registration.
§ 11A. Powers exercisable for protection of the public interest.
§ 11B. Undertaking to take licence of right in infringement proceedings.
§ 12. Use for services of the Crown.
§ International arrangements
§ 13. Orders in Council as to convention countries.
§ 14. Registration of design where application for protection in convention country has been made.
§ 15. Extension of time for applications under s.14 in certain cases.
§ 16. Protection of designs communicated under international agreements.
§ Register of designs, &c.
§ 17. Register of designs.
§ 18. Certificate of registration.
§ 19. Registration of assignments, &c.
§ 20. Rectification of register.
§ 21. Power to correct clerical errors.
§ 22. Inspection of registered designs.
§ 23. Information as to existence of right in registered design.
§ 24. … … … … … … …
§ Legal proceedings and appeals
§ 25. Certificate of contested validity of registration.
§ 26. Remedy for groundless threats of infringement proceedings.
§ 27. The Court.
§ 28. The Appeal Tribunal.
§ Powers and duties of registrar
§ 29. Exercise of discretionary powers of registrar.
§ 30. Costs and security for costs.
§ 31. Evidence before registrar.
§ 32. … … … … … … …
§ Offences
§ 33. Offences under s.5.
§ 34. Falsification of register, &c.
§ 35. Fine for falsely representing a design as registered.
§ 35A. Offence by body corporate: liability of officers.
367§ Rules, &c.
§ 36. General power of Secretary of State to make rules, &c.
§ 37. Provisions as to rules and Orders.
§ 38. … … … … … … …
§ Supplemental
§ 39. Hours of business and excluded days.
§ 40. Fees.
§ 41. Service of notices, &c. by post.
§ 42. Annual report of registrar.
§ 43. Savings.
§ 44. Interpretation.
§ 45. Application to Scotland.
§ 46. Application to Northern Ireland.
§ 47. Application to Isle of Man.
§ 47A. Territorial waters and the continental shelf.
§ 48. Repeals, saving and transitional provisions.
§ 49. Short title and commencement.
§ SCHEDULES:
§ Schedule 1—Provisons as to the use of registered designs for the services of the Crown and as to rights of third parties in respect of such use.
§ Schedule 2—… … … … … … …
§ An Act to consolidate certain enactments relating to registered designs.
§ [16th December 1949]'.
§
343 Page 152, line 9, leave out paragraph (b) and insert—
'(b) features of shape or configuration of an article which—
§ 344 Page 152, line 21, leave out from 'not' to 'and' in line 22 and insert 'normally taken into account to a material extent by persons acquiring or using articles of that description'.
§
345 Page 153, leave out lines 13 to 35 and insert—
'(2) An application for the registration of a design in which design right subsists shall not be entertained unless made by the person claiming to be the design right owner.
(3) For the purpose of deciding whether a design is new, the registrar may make such searches, if any, as he thinks fit.
(4) The registrar may, in such cases as may be prescribed, direct that for the purpose of deciding whether a design is new an application shall be treated as made on a date earlier or later than that on which it was in fact made.
(5) The registrar may refuse an application for the registration of a design or may register the design in pursuance of the application subject to such modifications, if any, as he thinks fit; and a design when registered shall be registered as of the date on which the application was made or is treated as having been made.
(6) An application which, owing to any default or neglect on the part of the applicant, has not been completed so as to enable registration to be effected within such time as may be prescribed shall be deemed to be abandoned.
(7) An appeal lies from any decision of the registrar under this section.'.
§ 346 Page 154, line 29, leave out '1(4)' and insert '1(3)'.
§ 347 Page 156, line 30, leave out 'in the United Kingdom'.
§ 348 Page 156, line 50, leave out from 'proprietor' to end of line 3 on page 157 and insert—
- (a) does anything in relation to a kit that would be an infringement if done in relation to the assembled article (see subsection (1)), or
- (b) makes anything for enabling a kit to be made or assembled, in the United Kingdom or elsewhere, if the assembled article would be such an article as is mentioned in subsection (1);
§
349 Page 157, line 3, at end insert—
'(5) No proceedings shall be taken in respect of an infringement committed before the date on which the certificate of registration of the design under this Act is granted.
(6) The right in a registered design is not infringed by the reproduction of a feature of the design which, by virtue of section 1(1)(b), is left out of account in determining whether the design is registrable.'.
§
350 Page 157, line 6, leave out from 'design' to 'if in line 14 and insert—
'(2) The period for which the right subsists may be extended for a second, third, fourth and fifth period of five years, by applying to the registrar for an extension and paying the prescribed renewal fee.
(3) If the first, second, third or fourth period expires without such application and payment being made, the right shall cease to have effect; and the registrar shall in accordance with rules made by the Secretary of State, notify the proprietor of that fact.
§ 351 Page 157, line 40, at end insert:
§ 'Restoration of lapsed right in design.
§ 8A.—(1) Where the right in a registered design has expired by reason of a failure to extend, in accordance with section 8(2) or (3A), the period for which the right subsists, an application for the restoration of the right in the design may be made to the registrar within the prescribed period.
§ (2) The application may be made by the person who was the registered proprietor of the design or by any other person who would have been entitled to the right in the design if it had not expired; and where the design was held by two or more persons jointly, the application may, with the leave of the registrar, be made by one or more of them without joining the others.
§ (3) Notice of the application shall be published by the registrar in the prescribed manner.
§ (4) If the registrar is satisfied that the proprietor took reasonable care to see that the period for which the right subsisted was extended in accordance with section 8(2) or (3A), he shall, on payment of any unpaid renewal fee an any prescribed additional fee, order the restoration of the right in the design.
§ (5) The order may be made subject to such conditions as the registrar thinks fit, and if the proprietor of the design does not comply with any condition the registrar may revoke the order and give such consequential directions as he thinks fit.
§ (7) The above provisions apply in relation to the use of a registered design for the services of the Crown as they apply in relation to the infringement of the right in the design.'.
§ 352 Page 158, line 12, after 'of', insert 'a'.
§ 353 Page 158, line 30, after 'ground', insert 'on'.
§ 354 Page 159, line 2, at end insert:
§ 'Powers exercisable for protection of the public interest.
§ 11A.—(1) Where a report of the Monopolies and Mergers Commission has been laid before Parliament containing conclusions to the effect—
- (a) on a monopoly reference, that a monopoly situation exists and facts found by the Commission operate or may be expected to operate against the public interest,
- (b) on a merger reference, that a merger situation qualifying for investigation has been created and the creation of the situation, or particular elements in or consequences of it specified in the report, operate or may be expected to operate against the public interest,
- (c) on a competition reference, that a person was engaged in an anti-competitive practice which operated or may be expected to operate against the public interest, or
- (d) on a reference under section 11 of the Competition Act 1980 (reference of public bodies and certain other persons), that a person is pursuing a course of conduct which operates against the public interest,
§ (2) Before making an application the appropriate Minister or Ministers shall publish, in such manner as he or they think appropriate, a notice describing the nature of the proposed application and shall consider any representations which may be made within 30 days of such publication by persons whose interests appear to him or them to be affected.
§ (3) If on an application under this section it appears to the registrar that the matters specified in the Commission's report as being those which in the Commission's opinion operate, or operated or may be expected to operate, against the public interest include—
- (a) conditions in licences granted in respect of a registered design by its proprietor restricting the use of the design by the licensee or the right of the proprietor to grant other licences, or—
- (b) a refusal by the proprietor of a registered design to grant licences on reasonable terms,
§ (4) The terms of a licence available by virtue of this section shall, in default of agreement, be settled by the registrar on an application by the person requiring the licence; and terms so settled shall authorise the licensee to do everything which would be an infringement of the right in the registered design in the absence of a licence.
§ (5) Where the terms of a licence are settled by the registrar, the licence has effect from the date on which the application to him was made.
§ (6) An appeal lies from any order of the registrar under this section.
§ (7) In this section "the appropriate Minister or Ministers" means the Minister or Ministers to whom the report of the Monopolies and Mergers Commission was made.
§ Undertaking to take licence of right in infringement proceedings.
§ 11B.—(1) If in proceedings for infringement of the right in a registered design in respect of which a licence is available as of right under section 11A of this Act the defendant undertakes to take a licence on such terms as may be agreed or, in default of agreement, settled by the registrar under that section—
- (a) no injunction shall be granted against him, and
- (b) the amount recoverable against him by way of damages or on an account of profits shall not exceed double the amount which would have been payable by him as licensee if such a licence on those terms had been granted before the earliest infringement.
§ (2) An undertaking may be given at any time before final order in the proceedings, without any admission of liability.
§ (3) Nothing in this section affects the remedies available in respect of an infringement committeed before licences of right were available.'.
§ 355 Page 159, line 48, leave out from 'application' to end of line 53 and insert—
§ '(3) Subsection (2) shall not be construed as excluding the power to give directions under section 3(4) of this Act in relation to an application made by virtue of this section.'.
§ 356 Page 164, line 49, leave out '1(4)' and insert ' 1(3)'.
§ 357 Page 165, line 51, leave out 'copyright' and insert 'right'.
§ 358 Page 166, line 23, at end insert—
§ '(2A) Proceedings may not be brought under this section in respect of a threat to bring proceedings for an infringement alleged to consist of the making or importing of anything.'.
§ 359 Page 166, line 28, leave out 'a' and insert 'any'.
§ 360 Page 166, line 29, leave out '(see Part VI' and insert 'having jurisdiction by virtue of an order under section 267'.
§ 361 Page 166, line 40, leave out from 'of' to end of line 42 and insert
§ '—
- (a) one or more judges of the High Court nominated by the Lord Chancellor, and
- (b) one judge of the Court of Session nominated by the Lord President of that Court.'.
§ 362 Page 167, line 12, after 'costs', insert 'or expenses'.
§ 363 Page 167, line 14, leave out from second 'be' io end of line 15 and insert 'enforced—
- (a) in England and Wales or Northern Ireland, in the same way as an order of the High Court;
- (b) in Scotland, in the same way as a decree for expenses granted by the Court of Session.'.
§ 364 Page 167, line 35, leave out first 'of and insert 'in'.
§ 365 Page 167, line 37, at end insert 'or the Court of Session'.
§ 366 Page 169, line 35, leave out from 'State' to end of line 55 and insert—
§ '(1A) Rules may, in particular, make provision—
- (a) prescribing the form of applications for registration of designs and of any representations or specimens of designs or other documents which may he filed at the Patent Office, and requiring copies to be furnished of any such representations, specimens or documents;
- (b) regulating the procedure to be followed in connection with any application or request to the registrar or in connection with any proceeding before him, and authorising the rectification of irregularities of procedure;
- (c) providing for the appointment of advisers to assist the registrar in proceedings before him;
- (d) regulating the keeping of the register of designs;
- (e) authorising the publication and sale of copies of representations of designs and other documents in the Patent Office;
- (f) prescribing anything authorised or required by this Act to be prescribed by rules.
§ (1B) The remuneration of an adviser appointed to assist the registrar shall be determined by the Secretary of State with the consent of the Treasury and shall be defrayed out of money provided by Parliament.'.
§ 367 Page 172, line 34, leave out from 'a' to end of line 35 and insert 'a Northern Ireland department, and in relation to a Northern Ireland department references to the Treasury shall be construed as references to the Department of Finance and Personnel'.
§ Lord StrathclydeMy Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 342 to 367 en bloc. In doing so I should also like to speak to Amendments Nos. 368, 368A and 369. With one exception, these amendments are simply repeats of the amendments made to Part IV and Schedule 3 of the Bill by the other place and to which your Lordships have already agreed. The exception is Amendment No. 368A which follows the amendment which your Lordships have already made to the Commons Amendment No. 339 in order to correct a grammatical error involving the use of the word "who". The result of all these amendments will be that Schedule 4 correctly sets out the Registered Designs Act 1949 as it will stand as a result of the Bill.
§ Moved, That the House do agree with the Commons in their Amendments Nos. 342 to 367 en bloc.—(Lord Strathclyde.)
§ On Question, Motion agreed to.