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(2) The Controller may, if he thinks fit as a condition of restoring the design, require that any entry shall be made in the register of any document or matter which under the provisions of this Act, has to be entered in the register but which has not been so entered.
SECTION 14: RIGHTS OF PROPRIETOR OF LAPSED DESIGN WHICH HAVE BEEN RESTORED
(1) Where the registration of a design is restored, the rights of the registered proprietor shall be subject to such provisions as may be prescribed and to such other provisions as the Controller thinks fit to impose for the protection or compensation of persons who may have begun to avail themselves of, or have taken definite steps by contract or otherwise to avail themselves of, benefit of applying the design between the date when the registration of the design ceased to have effect and the date of restoration of the registration of the design.
(2) No suit or other proceeding shall be commenced in respect of piracy of a registered design or infringement of the copyright in such design committed between the date on which the registration of the design ceased to have effect and the date of the restoration of the design.
SECTION 15: REQUIREMENTS BEFORE DELIVERY ON SALES
(1) Before delivery on sale of any articles to which a registered design has been applied, the proprietor shall-
(a) (if exact representations or specimens were not furnished on the application for registration) furnish to the Controller the prescribed number of exact representations or specimens of the design; and, if he fails to do so, the Controller may, after giving notice thereof to the proprietor, erase his name from the register and thereupon the copyright in the design shall cease; and
(b) cause each such article to be marked with the prescribed mark, or with the prescribed words or figures denoting that the design is registered; and, if he fails to do so, the proprietor shall not be entitled to recover any penalty or damages in respect of any infringement of his copyright in the design unless he shows that he took all proper steps to ensure the marking of the article, or unless he shows that the infringement took place after the person guilty thereof knew or had received notice of the existence of the copyright in the design.
(2) Where a representation is made to the Central Government by or on behalf of any trade or industry that in the interest of the trade or industry it is expedient to dispense with or modify as regards any class or description of articles any of the requirements of this section as to marking, the Central Government may, if it thinks fit, by rule under this Act, dispense with or modify such requirements as regards any such class or description of articles to such extent and subject to such conditions as it thinks fit.
SECTION 16: EFFECT OF DISCLOSURE ON COPYRIGHT
-The disclosure of a design by the proprietor to any other person, in such circumstances as would make it contrary to good faith for that other person to use or publish the design, and the disclosure of a design in breach of good faith by any person, other than the proprietor of the design, and the acceptance of a first and confidential order for articles bearing a new or original textile design intended for registration, shall not be deemed to/be a publication of the design sufficient to invalidate the copyright thereof if registration thereof is obtained subsequently to the disclosure or acceptance.
SECTION 17: INSPECTION OF REGISTERED DESIGNS
(1) During the existence of copyright in a design, any person on furnishing such information as may enable the Controller to identify the design and on payment of the prescribed fee may inspect in the prescribed manner.
(2) Any person may, on an application to the Controller and on payment of such fee as may be prescribed, obtain a certified copy of the registered design.
SECTION 18: INFORMATION AS TO EXISTENCE OF COPYRIGHT
-On the request of any person furnishing such information as may enable the Controller to identify the design, and on payment of the prescribed fee, the Controller shall inform such person whether the registration still exists in respect of the design, and, if so, in respect of what classes of articles, and shall state the date of registration, and the name and address of the registered proprietor.
SECTION 19: CANCELLATION OF REGISTRATION
(1) Any person interested may present a petition for the cancellation of the registration of a design at any time after the registration of the design, to the Controller on any of the following grounds, namely:-
(a) that the design has been previously registered in India; or
(b) that it has been published in India or any other country prior to. the date of registration; or
(c) that the design is not a new or original design; or
(d) that the design is not registrable under this Act or
(e) that it is not a design as defined under clause(d) ofSec.2-.
(2) An appeal shall lie from any order of the Controller under this section to the High Court, and the Controller may at any time refer any such petition to the High Court, and the High Court shall decide any petition so referred.
SECTION 20: DESIGNS TO BIND GOVERNMENT
-A registered design shall have to all intents the like effect as against the Government as it has against any person and the provisions of Chapter XVII of the Patents Act, 1970 (39 of 1970) shall apply to registered designs as they apply to patents.
SECTION 21: PROVISIONS AS TO EXHIBITIONS
-The exhibition of a design, or of any article to which a design is applied, at an industrial or other exhibition to which the provisions of this section have been extended by the Central Government by notification in the Official Gazette, or the publication of a description of the design, during or after the period of the holding of the exhibition, or the exhibition of the design or the article or the publication of a description of the design by any person elsewhere during or after the period of the holding of the exhibition, without the privacy or consent of the proprietor, shall not prevent the design from being registered or invalidate the registration thereof; Provided that-
(a) the exhibitor exhibiting the design or article, or publishing a description of the design, gives to the Controller previous notice in the prescribed form; and
(b) the application for registration is made within six months from the date of first exhibiting the design or article or publishing a description of the design.
SECTION 22: PIRACY OF REGISTERED DESIGN
(1) During the existence of copyright in any design it shall not be lawful for any person-
(a) for the purpose of sale to apply or cause to be applied to any article in any class of articles in which the design is registered, the design or any fraudulent or obvious imitation thereof, except with the licence or written consent of the registered proprietor, or to do anything with a view to enable the design to be so applied; or
(b) to import for the purposes of sale, without the consent of the registered proprietor, any article belonging to the class in which the design has been registered, and having applied to it the design or any fraudulent or obvious imitation thereof; or
(c) knowing that the design or any fraudulent or obvious imitation thereof has been applied to any article in any class of articles in which the design is registered without the consent of the registered proprietor, to publish or expose or cause to be published or exposed for sale that article.
(2) If any person acts in contravention of this section, he shall be liable for every contravention-
(a) to pay to the registered proprietor of the design a sum not exceeding twenty-five thousand rupees recoverable as a contract debt, or
(b) if the proprietor elects to bring a suit for the recovery of damages for any such contravention, and for an injunction against the repetition thereof, to pay such damages as may be awarded and to be restrained by injunction accordingly: Provided that the total sum recoverable in respect of any one design under clause (a) shall not exceed fifty thousand rupees: Provided further that no suit or any other proceeding for relief under
this sub-section shall be instituted in any court below the court of District Judge.
(3) In any suit or any other proceeding for relief under sub-see. (2), every ground on which the registration of a design may be cancelled underSec.19-shall be available as a ground of defence.
(4) Notwithstanding anything contained in the second proviso to sub-sec. (2), where any ground on which the registration of a design may be cancelled underSec.19-has been availed of as a ground of defence and sub-sec, (3) in any suit or other proceeding for relief under sub-sec. (2), the suit or such other proceeding shall be transferred by the court, in which the suit or such other proceeding is pending, to the High Court for decision.
(5) When the court makes a decree in a suit under sub-sec. (2), it shall send a copy of the decree to the Controller, who shall cause an entry thereof to be made in the register of designs.
SECTION 23: APPLICATION OF CERTAIN PROVISIONS OF THE ACT AS TO PATENTS TO DESIGNS
-The provisions of the Patents Act, 1970 (39 of 1970) with regard to certificates of the validity of a patent, and to the remedy in case of groundless threats of legal proceedings by a patentee shall apply in the case of registered designs in like manner as they apply in the case of patents, with the substitution of references to the copyright in a design for reference to a patent, and of references to the proprietor of a design for references to the patentee, and of references to the design for references to the invention.
SECTION 24: FEES
(1) There shall be paid in respect of the registration of designs and applications therefor and in respect of other matters relating to designs under this Act such fees as may be prescribed.
(2) A proceeding in respect of which a fee is payable under this Act or the rules made thereunder shall be of no effect unless the fee has been paid. Provisions as to registers and other documents in the patent office
SECTION 25: NOTICE OF TRUST NOT TO BE ENTERED IN REGISTERS
-There shall not be entered in any register kept under this Act, or be receivable by the Controller, any notice of any trust expressed, implied or constructive.
SECTION 26: INSPECTION OF AND EXTRACTS FROM REGISTERS
-Every register kept under this Act shall at all convenient times be open to the inspection of the public, subject to the provisions of this Act; and certified copies, sealed with the seal of the patent office, of any entry in any such register shall be given to any person requiring the same on payment of the prescribed fee: Provided that where such register is maintained wholly or partly on computer, the inspection of such register under this section shall be made by inspecting the computer print out of the relevant entry in the register so maintained on computer,
SECTION 27: PRIVILEGE OF REPORTS OF CONTROLLER
-Reports of or to the Controller made under this Act other than the report referred to inSec.45-shall not in any case be published or be open to public inspection.
SECTION 28: PROHIBITION AND PUBLICATION OF SPECIFICATION, DRAWINGS, ETC., WHEREAPPLICATION ABANDONED, ETC
-Where an application for a design has been abandoned or refused, the application and any drawings, photographs, tracings, representations or specimens left in connection with the application shall not at any time be open to public inspection or be published by the Controller.
SECTION 29: POWER OF CONTROLLER TO CORRECT CLERICAL ERRORS
-The Controller may, on request in writing accompanied by the prescribed fee, correct any clerical error in the representation of a design or in the name or address of the proprietor of any design, or in any other matter, which is entered upon the register of designs.
SECTION 30: ENTRY OF ASSIGNMENT AND TRANSMISSIONS IN REGISTERS
(1) Where a person becomes entitled by assignments, transmission or other operation of law to the copyright in a registered design, he may make an application in the prescribed form to the Controller to register his title, and the Controller shall, on receipt of such application and on proof of title to his satisfaction, register him as the proprietor of such design, and shall cause an entry to be made in the prescribed manner in the register of the assignment, transmission or other instrument affecting the title.
(2) Where any person becomes entitled as mortgagee, licensee or otherwise to any interest in a registered design, he may make an application in prescribed form to the Controller to register his title, and the Controller shall, on receipt of such application and on proof of title to his satisfaction, cause notice of the interest to be entered in the prescribed manner in the register of designs, with particulars of the instrument, if any, creating such interest.
(3) For the purposes of sub-sec. (1) or sub-sec. (2), an assignment of a design or of a share in a design, a mortgage, licence or the creation of any other interest in a design shall not be valid unless the same were in writing and the agreement between the parties concerned is reduced to the form of an instrument embodying all the terms and conditions governing their rights and obligation and the application for registration of title under such instrument is filed in the prescribed manner with the Controller within six months from the execution of the instrument or within such further period not exceeding six months in the aggregate as the Controller on the application made in the prescribed manner allows: Provided that the instrument shall, on entry of its particulars in the register under sub-sec. (1) or sub-sec. (2), have the effect from the date of its execution.
(4) The person registered as the proprietor of a design shall, subject to the provisions of this Act and to any rights appearing from the register to be vested in any other person, have power absolutely to assign, grant licences as to, or otherwise deal with, the design and to give effectual receipts for any consideration for any such assignment, licence or dealing: Provided that any equities in respect of the design may be enforced in like manner as in respect of any other movable property.
(5) Except in the case of an application made underSec.31-, a document or instrument in respect of which no entry has been made in the register in accordance with the provisions of sub-sees. (1) and (2) shall not be admitted in evidence in any court in proof of the title to copyright in a design or to any interest therein, unless the court, for reasons to be recorded in writing, otherwise directs.
SECTION 31: RECTIFICATION OF REGISTER
(1) The Controller may, on the application in the prescribed manner of any person aggrieved by the non-insertion in or omission from the register of designs of any entry, or by any entry made in such register without sufficient cause, or by any entry wrongly remaining on such register, or by an error or defect in any entry in such register, make such order for making, expunging or varying such entry as he thinks fit and rectify the register accordingly.
(2) The Controller may, in any proceeding under this section, decide any question that may be necessary or expedient to decide in connection with the rectification of a register.
(3) An appeal shall lie to the High Court from any order of the Controller under this section and the Controller may refer any application under this section to the High Court for decision, and the High Court shall dispose of any application so referred.
(4) Any order of the Court rectifying a register shall direct that notice of the rectification be served on the Controller in the prescribed manner who shall upon the receipt of such notice rectify the register accordingly.
(5) Nothing in this section shall be deemed to empower the Controller to make any such order cancelling the registration of a design as is proved for inSec.19-.
SECTION 32: POWER OF CONTROLLER IN PROCEEDINGS UNDER ACT
-Subject to any rules made in this behalf, the Controller in any proceedings before him under this Act shall have the powers of a civil court for the purpose of receiving evidence, administering oaths, enforcing the attendance of witnesses, compelling the discovery and production of documents, issuing commissions for the examination of witnesses and awarding costs and such award shall be executable in any court having jurisdiction as if it were a decree of that court.
SECTION 33: EXERCISE OF DISCRETIONARY POWER BY CONTROLLER
-Where any discretionary power is by or under this Act given to the Controller, he shall not exercise that power adversely to the applicant for registration of a design without (if so required within the prescribed time by the applicant) giving the applicant an opportunity of being heard.
SECTION 34: POWER OF CONTROLLER TO TAKE DIRECTIONS OF THE CENTRAL GOVERNMENT
-The Controller may, in any case of doubt or difficulty arising in the administration of any of the provisions of this Act, apply to the Central Government for directions in the matter.
SECTION 35: REFUSAL TO REGISTER A DESIGN IN CERTAIN CASES
(1) The Controller may refuse to register a design of which the use would, in his opinion, be contrary to public order or morality.
(2) An appeal shall lie to the High Court from an order of the Controller under this section.
SECTION 36: APPEALS TO THE HIGH COURT
(1) Where an appeal is declared by this Act to lie from the Controller to the High Court, the appeal shall be made within three months of the date of the order passed by the Controller.
(2) In calculating the said period of three months, the time (if any) occupied in granting a copy of the order appealed against shall be excluded.
(3) The High Court may, if it thinks fit, obtain the assistance of an expert in deciding such appeals, and the decisions of the High Court shall be final.
(4) The High Court may make rules consistent with this Act as to the conduct and procedure of all proceedings under this Act before it.
SECTION 37: EVIDENCE BEFORE THE CONTROLLER
-Subject to any rules made underSec.44-, in any proceeding under this Act before the Controller, the evidence shall be given by affidavit in the absence of directions by the Controller to the contrary; but in any case in which the Controller thinks it right so to do he may take evidence viva voce in lieu of or in addition to evidence by affidavit or may allow any party to be cross-examined on the contents of his affidavit.
SECTION 38: CERTIFICATE OF CONTROLLER TO BE EVIDENCE
-A certificate purporting to be under the hand of the Controller as to any entry, matter or thing which he is authorised by this Act, or any rules made there under to make or do, shall be prima fade evidence of the entry having been made, and the contents thereof, and of the matter or thing having been done or left undone.
SECTION 39: EVIDENCE OF DOCUMENTS IN PATENT OFFICE
-Printed or written copies or extracts, purporting to be certified by the Controller and sealed with the seal of the patent office, of documents in the patent office, and of or from registers and other books kept there, shall be admitted in evidence in all courts in India, and in all proceedings, without further proof or production of the originals: Provided that a court may, if it has reason to doubt the accuracy or authenticity of the copies tendered in evidence, require the production of the originals or such further proof as it considers necessary.
SECTION 40: APPLICATION AND NOTICES BY POST
-Any application, notice or other document authorised or required to be left. made or given at the patent office or to the Controller, or to any other person under this Act, may be sent by post.
SECTION 41: DECLARATION BY INFANT, LUNATIC, ETC
(1) If any person, is by reason of infancy, lunacy or other disability, incapable of making any statement or doing anything required or permitted by or under this Act, the lawful guardian, committee or manager (if any) of the person subject to the disability, or, if there be none, any person appointed by any court possessing jurisdiction in respect of his property, may make such statement or a statement as nearly corresponding thereto as circumstances permit, and do such thing in the name and on behalf of the person subject to the disability.
(2) An appointment may be made by the court for the purposes of this section under the petition of any person acting on behalf of the person subject to the disability or of any other person interested in the making of the statement or the doing of the thing.
SECTION 42: AVOIDANCE OF CERTAIN RESTRICTIVE CONDITIONS
(1) It shall not be lawful to inserts-
(i) in any contract for or in relation to the sale or lease of an article in respect of which a design is registered; or
(ii) in a licence to manufacture or use an article in respect of which a design is registered;
(iii) in a licence to package the article in respect of which a design is registered, condition the effect of which may be -
(a) to require the purchaser, lessee, or licensee to acquire from the vendor, lessor, or licenser or his nominees, or to prohibit him from acquiring or to restrict in any manner or to any extent his right to acquire from any person or to prohibit him from acquiring except from the vendor, lessor or his nominees any article other than the article in respect of which a design is registered; or
(b) to prohibit the purchaser, lessee or licensee from using or to restrict in any manner or to any extent the right of the purchaser, lessee or licensee, to use an article other than the article in respect of which a design is registered which is not supplied by the vendor, lessor or licensor or his nominee, and any such condition shall be void.
(2) A condition of the nature referred to in clause (a) or clause (b) of sub-sec. (1) shall not cease to be a condition falling within that sub -see merely by reason of the fact that the agreement containing it has been entered into separately, whether before or after the contract relating to the sale, lease or licence of the article in respect of which a design is registered.
(3) In proceeding against any person for any act in contravention ofSec.22-, it shall be a defence to prove that at the time of such contravention there was in force a contract relating to the registered design and containing a condition declared unlawful by this section: Provided that this sub-section shall not apply if the plaintiff is not a party to the contract and proves to the satisfaction of the court that the restrictive condition was inserted in the contract without his knowledge and consent, express or implied.
(4) Nothing in this section shall -
(a) affect a condition in a contract by which a person is prohibited from selling goods other than those of a particular person;
(b) validate a contract which, but for this section, would be invalid;
(c) affect a condition in a contract for the lease of, or licence to use, an article in respect of which a design is registered, by which the lessor or licensor reserves to himself or his nominee the right to supply such new parts of the article, in respect of which a design is registered, as may be required or to put or keep it in repair.
(5) The provision of this section shall also apply to contracts made before the commencement of this act if, and in so far as, any restrictive conditions declared unlawful by this section continue in force after the expiration of one year from such commencement.
SECTION 43: AGENCY
(1) All applications and communications to the Controller under this Act may be signed by, and all attendances upon the Controller may be made by or through a legal practitioner or by or through an agent whose name and address had been entered in the register of patent agents maintained underSec.125 of the Patents Act, 1970-(39 of 1970).
(2) The Controller may, if he sees fit, require-
(a) any such agent to be resident in India;
(b) any person not residing in India to employ an agent residing in India;
(c) the personal signature or presence of any applicant or other person.
SECTION 44: RECIPROCAL ARRANGEMENT WITH THE UNITED KINGDOM AND OTHER CONVENTION COUNTRIES OR GROUP OF COUNTRIES OR INTER—GOVERNMENTAL ORGANISATIONS
(1) Any person who has applied for protection for any design in the United Kingdom or any of other convention countries or group of countries or countries which are members of intergovernmental organisations, or his legal representative or assignee shall, either alone or jointly with any other person, be entitled to claim that the registration of the said design under this Act shall be in priority to other applicants and shall have the same date as the date of the application in the United Kingdom or any of such other convention countries or group of countries or countries which are members of inter-govern- mental organisations, as the case may be.
Provided that-
(a) the application is made within six months from the application for protection in the United Kingdom or any such other convention countries or group of countries or countries which are members of inter-governmental organisations, as the case may be; and
(b) nothing in this section shall entitle the proprietor of the design to recover damages for piracy of design happening prior to the actual date on which the design is registered in India.
(2) The registration of a design shall not be invalidated by reason only of the exhibition or use of or the publication of a description or representation of the design in India during the period specified in this section as that within which the application may be made.
(3) The application for registration of a design under this section has been made in the same manner as an ordinary application under this Act,
(4) Where it is made to appear to the Central Government that the legislature of the United Kingdom or any such other convention country or a country which is member of any group of countries or inter-governmental organization as may be notified by the Central Government in this behalf has made satisfactory provision for the protection of designs registered in India, the Central Government may, by notification in the Official Gazette, direct that the provisions of this section, with such variations or additions, if any, as may be set out in such notification, shall apply for the protection of designs registered in the United Kingdom or that other convention country or such country which is member of any group of countries or inter-governmental organisation, as the case may be.
Explanation 1.-For the purposes of this section, the expression "convention countries", "group of countries" or "intergovernmental organisation" means, respectively, such countries, group of countries or inter-governmental organisation to which the Paris Convention for Protection of Industrial Property, 1883 as revised at Stockholm in 1967 and as amended in 1979 or the Final Act, embodying the results of the Uruguay Round of Multilateral Trade Negotiations, provided for the establishment of World Trade Organisation applies.
Explanation 2.-Where more than one application for protection referred to in sub-sec.(1) has been made for similar protections in the United Kingdom or one or more convention countries, group of countries or countries which are members ofinter-governmental organisations, the period of six months referred to in clause (a) of that sub-section shall be reckoned from the date of which the earlier or the earliest application, as the case may be, of such applications has been made.
SECTION 45: REPORT OF THE CONTROLLER TO BE PLACED BEFORE PARLIAMENT
-The Central Government shall cause to be placed before both Houses of Parliament once a year a report respecting the execution of this Act by or under the Controller.
SECTION 46: PROTECTION OF SECURITY OF INDIA
-Notwithstanding anything contained in this Act, the Controller shall -
(a) not disclose any information relating to the registration of a design or any application relating to the registration of a design under this Act, which he considers prejudicial to the interest of the security of India; and
(b) take any action regarding the cancellation of registration of such designs registered under this Act which the Central Government may, by notification in the Official Gazette, specify in the interest of the security of India.
Explanation.-For the purposes of this section, the expression "security of India" means any action necessary for the security of India which relates to the application of any design registered under this Act to any article used for war or applied directly or indirectly for the purposes of military establishment or for the purposes of war or other emergency in international relations.
SECTION 47: POWER OF CENTRAL GOVERNMENT TO MAKE RULES
(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-
(a) the form of application for registration of design, the manner of filing it at the patent office and the fee which shall accompany it, under sub-sec. (2) ofSec.5-;
(b) the time within which the registration is to be effected under sub-sec. (5) ofSec.5-;
(c) the classification of articles for registration under sub-sec. (1) ofSec.6-;
(d) the particulars of design to be published and the manner of their publication under Sec. 7;
(e) the manner of making claim under sub-sec. (1) ofSec.8-;
(f) the manner of making applications to the Controller under sub-sec. (5) ofSec.8-;
(g) the additional matters required to be entered in the register of designs and the safeguards to be made in maintaining such register in computer floppies or diskettes under sub-sec. (1) ofSec.10-;
(h) the manner of making application and fee to be paid for extens
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