(a)
in the Tribunal; or
(b)
in the High Court; or
(c)
subject to the jurisdictional limits provided for in the Magistrates
Court Act [Chapter 7:10], in a magistrates court.
39
Provisions applicable to proceedings for infringement of registered layoutdesign
(1) Subject to any rules of court, the following provisions shall apply in connection
with proceedings for infringement of a registered layout-design—
(a)
any ground upon which the registration of a layout-design may be
cancelled in terms of section nineteen may be relied upon by way of defence;
(b)
the defendant or respondent may, by way of counterclaim in the
proceedings, apply for the cancellation of the registration of the layout-design;
(c)
the plaintiff or applicant shall, with the documents instituting the
proceedings or subsequently on the order of the Tribunal or the court concerned,
deliver full particulars of the infringement complained of;
(d)
the defendant or respondent shall, with his statement of defence or
plea or replying affidavit or subsequently on the order of the Tribunal or the court
concerned, deliver particulars of any objections on which he relies;
(e)
except with the leave of the Tribunal or the court concerned, at the
hearing no evidence shall be admitted of any infringement or on any objection of
which particulars have not been delivered in terms of paragraph (c) or (d).
(2) In any proceedings brought under this section by an exclusive licensee, the
registered proprietor shall be added as defendant or respondent, as the case may be,
unless he is joined as plaintiff or applicant:
Provided that a registered proprietor so added as defendant or respondent shall not be
liable for any costs unless he takes part in the proceedings.
(3) If the registered proprietor is the plaintiff or applicant in any proceedings under
this section, he shall give notice of the proceedings to any exclusive licensee of the
layout-design in question, and the licensee shall be entitled to intervene as a co
plaintiff or co-applicant, as the case may be, and to recover any damages he may have
suffered as a result of the infringement.
(4) No proceedings shall be brought under this section in respect of an infringement
which took place before the registration of the layout-design concerned.
40
Remedies available in proceedings for infringement
(1) Subject to this Act, in proceedings for infringement of a registered layout-design
the plaintiff or applicant shall be entitled to any appropriate remedy, whether
damages, interdict, attachment, the rendering of account, the delivery of infringing
copies or articles used or intended to be used for making infringing copies or
otherwise, that is available in respect of the infringement of any other proprietary
right.
(2) Damages for infringement of a registered layout-design may, at the option of the
person seeking them, be calculated on the basis of the amount that an exclusive
licensee would reasonably have been expected to pay under the circumstances for his
use of the design concerned:
Provided that, if the person seeking damages intends to exercise this option, he shall
give notice of his intention, in writing, to any exclusive licensee of the registered
design concerned.
(3) In determining the amount of damages in an action for infringement of a
registered layout-design, the Tribunal or the court, as the case may be, shall take the
following factors into account, in addition to all other material considerations¾
(a)
the extent and nature of the infringement; and
(b)
the market value of the layout-design concerned; and
(c)
the amount which could be payable to the proprietor in respect of the
use of the layout-design by some other person; and
(d)
any dilatory conduct on the part of the proprietor of the layout-design