to have them.
[Amended by Act 25 of 2001 with effect from the 1st March, 2002.]
46
Provisions relating to action for infringement
(1) In this section¾
“Court”, in relation to proceedings for infringement of copyright in a registered
industrial design, means the Tribunal or the court in which the proceedings have been
instituted.
[Amended by Act 25 of 2001 with effect from the 1st March, 2002.]
(1A) An action for infringement of a registered industrial design may be instituted—
(a)
in the Tribunal; or
(b)
in the High Court; or
(c)
subject to the jurisdictional limits provided for in the Magistrates
Court Act [Chapter 7:10], in a magistrates court.
[Inserted by Act 25 of 2001 with effect from the 1st March, 2002.]
(2) Subject to any rules of court, the following provisions shall apply in connection
with an action for infringement—
[Amended by Act 25 of 2001 with effect from the 1st March, 2002.]
any ground upon which the registration of a design may be cancelled
(a)
in terms of subsection (2) of section twenty-five may be relied upon by way of
defence;
(b)
the defendant may, by way of counterclaim in the action, apply for the
cancellation of the registration of the design;
(c)
the plaintiff shall, with his statement of claim or declaration or on the
order of the Court at any subsequent time, deliver full particulars of the infringement
complained of;
(d)
the defendant shall, with his statement of defence or plea or on the
order of the Court at any subsequent time, deliver particulars of any objections on
which he relies in support thereof;
(e)
at the hearing no evidence shall, except by leave of the Court, be
admitted of any infringement or on any objections of which particulars have not been
so delivered in terms of paragraph (c) or (d).
(3) In any action under this section where an exclusive licensee is the plaintiff, the
registered proprietor shall, unless he is joined as plaintiff in such action, be added as
defendant:
Provided that a registered proprietor so added as defendant shall not be liable for any
costs unless he enters an appearance and takes part in the proceedings.
(4) If the registered proprietor is the plaintiff in any action under this section, he shall
give notice thereof to the exclusive licensee of the design in question and any such
licensee shall be entitled to intervene as a co-plaintiff and to recover any damages he
may have suffered as a result of the infringement.
(5) No action under this section shall lie in respect of an infringement which took
place before the registration of the design.
(6) No action for infringement of copyright in a registered design may be instituted
more than three years after the expiration of the period of copyright in that design.
(7) . . . . . .
[Repealed by Act 25 of 2001 with effect from the 1st March, 2002.]
(8) . . . . . .
[Repealed by Act 25 of 2001 with effect from the 1st March, 2002.]
46A Remedies available in action for infringement
(1) Subject to this Act, in an action for infringement of copyright in a registered
design the plaintiff shall be entitled to any appropriate remedy, whether damages,
interdict, attachment, the rendering of account, the delivery of infringing copies or
articles used or intended to be used for making infringing copies or otherwise, that is
available in respect of the infringement of any other proprietary right.
(2) Damages for infringement of copyright in a registered design may, at the option of