(11) The court may, after hearing the parties concerned, assess the
amount of such compensation if in its opinion the application ought to
be granted, and determine the time in which such compensation shall
be paid.
(12) Any amount assessed under subsection (11) shall not be recoverable
as a debt or damages but, if it is not paid within the time determined
by the court, the registration of the design shall lapse.
36.
Declaration as to non-infringement.
(1) A declaration that the making, importing, using, disposing or
reproducing of an article by any person does not or would not
constitute an infringement of a registered design, may be made by the
court in proceedings between that person and the registered
proprietor, notwithstanding that no assertion to the contrary has been
made by the registered proprietor or licensee, if it is proved that—
(2)
37.
(a)
such person has applied in writing to the registered proprietor
or licensee for a written acknowledgement to the effect of the
declaration claimed, and has furnished him with full particulars
of the article in question; and
(b)
the registered proprietor or licensee has failed to give such an
acknow-ledgement.
The costs of all parties to proceedings for a declaration instituted by
virtue of this section shall be awarded in such manner as the court
may deem fit.
Remedy for groundless threats of infringement proceedings.
(1)
If any person, by circular, advertisement or otherwise, threatens any
other person with proceedings for infringement of a registered design,
a person aggrieved thereby may, whether the person making the
threats is or is not entitled to or interested in a registered design, or an
application for the registration of a design, institute proceedings
against him and obtain a declaration to the effect that such threats are
unjustifiable and an interdict against the continuance of such threats,
and may recover such damages, if any, as he has sustained thereby,
unless the person making the threats proves that the acts in respect of
which the proceedings are threatened, constitute or, if performed,
would constitute an infringement of a registered design which is not
shown by the plaintiff to be invalid: Provided that a circular,
advertisement or communication addressed to any person which
comprises only a notification of the existence of a particular registered
design upon which the registered proprietor relies for protecting his
interest shall not, by itself, be deemed to be a threat of proceedings
for infringement.
(2)
The defendant in any such proceedings may apply by way of a
counterclaim in the proceedings for any relief to which he would be
entitled in separate proceedings in respect of any infringement by the
plaintiff of the registered design to which the threat relates.