(5)
If the only abuse found by the court to have been established is that set out in
subsection (2) (a), any licence granted shall be non-exclusive but shall not be
transferable except to a person to whom the business or the part of the
business in connection with which the rights under the licence were exercised
has been transferred.
(6)
In all other cases the court may grant an exclusive licence if, having regard to
all the circumstances of the case, it considers it justified, and for that purpose
the court may revoke any existing licence on such conditions as it may deem
fit.
(7)
In determining the conditions on which any licence is granted the court shall
have regard to all relevant facts, including the risks to be undertaken by the
licensee, the research and development undertaken by the registered
proprietor or his predecessor and the terms and conditions usually stipulated
in similar licence agreements in respect of registered designs between
persons who voluntarily enter into such agreements.
(8)
Any order of the court under this section shall be made with a view to
avoiding the abuse found by the court to have been established.
(9)
The court may amend or revoke any licence granted under this section.
(10) Subject to the provisions of subsection (11) and to the conditions that may be
attached to the licence, a licensee under this section shall have the same
rights and obligations as any other licensee under a registered design.
(11) An exclusive licensee under this section may, subject to the conditions
attached to the licence, institute any proceedings which may be necessary to
prevent infringement, and to recover damages as a result of infringement, of
the design in question, as if he were the registered proprietor: Provided that—
(a)
the registered proprietor concerned shall be joined as a party to such
proceedings;
(b)
the registered proprietor may join in the proceedings either as coplaintiff or as co-defendant; and
(c)
the registered proprietor shall not be liable for any costs in connection
with such proceedings unless he enters an appearance and takes part
in those proceedings.
(12) Notwithstanding the provisions of subsection (11), a registered proprietor
whose design is the subject of an exclusive licence in terms of this section
may institute any proceedings which are necessary to prevent infringement
and to recover damages as a result of such infringement: Provided that—
(a)
the exclusive licensee shall be joined as a party to such
proceedings;
(b)
the exclusive licensee may join in the proceedings either as
co-plaintiff or as co-defendant; and
the exclusive licensee shall not be liable for any costs in
connection with such proceedings unless he enters an
appearance and takes part in those proceedings.
(c)