layout-design concerned if the Tribunal is satisfied that the applicant¾
(i)
requires a compulsory licence to exploit the design for public non
commercial use or in order to remedy an anti-competitive practice; and
(ii)
has made reasonable efforts to obtain a licence or authorisation from
the proprietor on reasonable commercial terms and conditions but his efforts have not
been successful within a reasonable period of time;
or
(b)
may make such other order in regard to the application as the Tribunal
considers just.
(8) Subject to this section, a compulsory licence may be granted on such terms and
conditions as the Tribunal thinks expedient, including a term precluding the licensee
from importing into Zimbabwe any goods whose importation, by persons other than
the proprietor or persons claiming under him, would be an infringement of the
proprietor’s rights.
(9) The terms of a compulsory licence—
(a)
shall not authorise the commercial exploitation of the registered
layout-design concerned unless the licence has been issued to remedy an anticompetitive practice; and
(b)
where commercial exploitation is authorised, shall authorise the
exploitation of the registered layout-design concerned primarily to satisfy the market
in Zimbabwe; and
(c)
shall secure to the proprietor the maximum royalty compatible with
the successful exploitation within Zimbabwe of the registered layout-design on a
commercial scale and at a reasonable profit; and
(d)
shall guarantee to the proprietor a minimum yearly sum by way of
royalty, if and so far as it is reasonable to do so.
(10) In addition to any other terms of a compulsory licence, the licence shall be
revocable at the discretion of the Tribunal if—
(a)
the circumstances that led to its grant cease to exist; or
(b)
the licensee fails—
(i)
to exploit the registered layout-design concerned within the time
specified in the order; or
(ii)
to pay the proprietor the royalties payable in terms of the licence.
(11) Unless good reason is shown to the contrary, in deciding to whom a compulsory
licence is to be granted, the Tribunal shall prefer an existing licensee to a person who,
according to the Register, has no interest in the registered layout-design concerned.
(12) Subject to this section, a licensee under a compulsory licence shall have the same
rights as any other licensee in respect of the registered layout-design concerned.
(13) An order for the grant of a compulsory licence shall, without prejudice to any
other method of enforcement, have effect as if it were an agreement executed by the
proprietor concerned and all other necessary parties granting a licence in accordance
with the order.
(14) A licensee under a compulsory licence may call upon the proprietor concerned to
institute any proceedings that may be necessary to prevent infringement of the
proprietor’s rights, where the infringement prejudices the licensee’s rights under his
compulsory licence, and if the proprietor fails to institute such proceedings within
two months after being called upon to do so or within such further period as the
Tribunal may allow, the licensee may himself institute the proceedings as if he were
the proprietor, making the proprietor a defendant:
Provided that the proprietor shall not be liable for any costs in connection with the
proceedings unless he enters an appearance and takes part in the proceedings.
(15) The holder of a compulsory licence under this section shall not be entitled to
transfer the licence or grant a sub-licence thereunder except to a person to whom he
has transferred his business or that part of his business concerned with the exercise of
rights under the licence.