have been payable by a licensee or sub-licensee in respect of
the registered design concerned.
[Sub-s. (3) added by s. 73 of Act No. 38 of 1997.]
21.
Compulsory licence in case of abuse of rights.
(1)
Any interested person who can show that the rights in a registered
design are being abused, may apply to the court in the prescribed
manner for the granting of a compulsory licence in respect of the
registered design.
(2)
The rights in a registered design shall be deemed to be abused if—
(a)
articles embodying the registered design are not available to
the public in the Republic on a commercial scale or to an
adequate extent after the registration date, and there is in the
opinion of the court no satisfactory reason therefor;
(b)
the availability of articles embodying the registered design in
the Republic on a commercial scale or to an adequate extent is
being prevented or hindered by the importation of such
articles;
(c)
the demand for the articles embodying the registered design in
the Republic is not being met to an adequate extent and on
reasonable terms;
(c)
by reason of the refusal of the registered proprietor to grant a
licence or licences upon reasonable terms, the trade or
industry or agriculture of the Republic or the trade of any
person or class of persons trading in the Republic, or the
establishment of any new trade or industry in the Republic, is
being prejudiced, and it is in the public interest that a licence or
licences should be granted; or
(e)
the demand in the Republic for the articles embodying the
registered design is being met by importation and the price
charged by the registered proprietor, his licensee or agent for
the said articles is excessive in relation to the price charged
therefor in countries where the said articles are manufactured
by or under licence from the registered proprietor or his
predecessor or successor in title.
(3)
The registered proprietor or any other person appearing from the register to
be interested in the registered design may in the prescribed manner oppose
the application.
(4)
(a)
The court may order the grant to the applicant of a licence on such
conditions as it may deem fit, including a condition precluding the
licensee from importing into the Republic any articles embodying the
registered design.
(b)
If the court is of the opinion that an order directing the grant of a
licence is not justified, it may refuse the application.