(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.