the person seeking them, be calculated on the basis of the amount that an exclusive
licensee would reasonably have been expected to pay under the circumstances for his
use of the design concerned:
Provided that, if the person seeking damages intends to exercise this option, he shall
give notice of his intention, in writing, to any exclusive licensee of the registered
design concerned.
(3) In determining the amount of damages in an action for infringement of copyright
in a registered design, the Tribunal or the court, as the case may be, shall take the
following factors into account, in addition to all other material considerations¾
(a)
the extent and nature of the infringement; and
(b)
the amount which could be payable to the proprietor in respect of the
use of the design by some other person; and
(c)
any dilatory conduct on the part of the proprietor of the design or the
plaintiff in making the infringer aware that the design was registered.
(4) If it is established, in an action for infringement of copyright in a registered
design, that an infringement was committed and the Tribunal or the court, having
regard to¾
(a)
the flagrancy of the infringement; and
(b)
any benefit shown to have accrued to the person responsible for the
infringement as a result of it;
is satisfied that effective relief would not otherwise be available to the plaintiff or
applicant, the Tribunal or the court, as the case may be, shall have power to award
such additional damages as it thinks fit.
(5) If it is established, in an action for an infringement of copyright in a registered
design, that an infringement was committed but that at the time of the infringement
the person responsible for it was not aware and had no reasonable grounds for
suspecting that he was not entitled to engage in the infringing activity, the plaintiff
shall not be entitled under this section to any damages against that person in respect
of the infringement.
(6) Where¾
(a)
there has been a change in the proprietorship of a registered design,
whether through assignment, transmission, operation of law or otherwise; or
(b)
an exclusive licence has been granted in respect of a registered design;
the new proprietor or co-proprietor or the exclusive licensee, as the case may be, shall
not be entitled to recover damages for any infringement of the copyright in that
design which occurred during the period from the change in the proprietorship or the
grant of the exclusive licence, as the case may be, until the change or the grant was
registered in terms of section twenty-two, unless the registration was effected within
six months of the change or the grant.
[Inserted by Act 25 of 2001 with effect from the 1st March, 2002.]
46B
Orders without notice (Anton Piller orders)
(1) If a person who has instituted or intends instituting proceedings for an
infringement of copyright in a registered industrial design satisfies the Tribunal or a
court that, prima facie—
he has a cause of action against another person which he intends to
(a)
pursue; and
(b)
the other person has in his possession documents or other things of
whatsoever nature which constitute evidence of great importance in substantiation of
that cause of action; and
(c)
there is a real and well-founded apprehension that the documents or
other things may be hidden, destroyed or rendered inaccessible before discovery can
be made in the usual way;
the Tribunal or court, as the case may be, may make such order, commonly known as
Anton Piller order, as it considers necessary or appropriate to secure the preservation
of the documents or things as evidence.