Industrial Designs Act, 2001
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Effect of order for restoration of design right. |
45.—(1) An act undertaken or authorisation given under or in relation to the design right in a design during the period between expiry and restoration of the design right shall be treated as valid. | |
(2) An act undertaken during the period between expiry and restoration of the design right which would have constituted an infringement if the design right had not expired shall be treated as an infringement— | ||
(a) if undertaken at a time when it was possible for an application for extension to be made under section 43 , or | ||
(b) if it was a continuation or repetition of an earlier infringing act. | ||
(3) Where it is no longer possible for an application for extension to be made under section 43 , and before publication of notice of the restoration, a person— | ||
(a) began in good faith to undertake an act which would have constituted an infringement of the design right if it had not expired, or | ||
(b) made in good faith effective and serious preparations to undertake such an act, | ||
he or she has the right to continue to undertake the act, or, as the case may be, to undertake the act, notwithstanding the restoration of the design right. | ||
(4) Subsection (3) does not extend to granting a licence to another person to undertake the act. | ||
(5) If the act referred to in subsection (3) was undertaken, or preparations were made, in the course of a business, trade or profession, the person entitled to the right conferred by subsection (3) may— | ||
(a) authorise the undertaking of that act by any of his or her partners for the time being in that business, trade or profession, and | ||
(b) (i) assign that right, or | ||
(ii) transmit that right by testamentary disposition (or in the case of a body corporate on its dissolution), | ||
to any person who acquired that part of the business, trade or profession during the time when the act was being undertaken or the preparations were being made. | ||
(6) Where a product is disposed of to another person in exercise of the rights conferred by subsection (3) or subsection (5), that other person and any person claiming under him or her may use the product in the same way as if it had been disposed of by the registered proprietor of the design. | ||
(7) An act referred to in this section which would have constituted use for service of the State of the design if the design right remained in force during the period between expiry and restoration shall be deemed to constitute use for the service of the State. |