« PreviousContinue »
Sects. addresses will be entered, and clerical errors corrected on 55-57. application being made in Form M. (Designs Forms), the fee being 5s.
Orders of Court.
Fees on registration, &c.
Exhibition at industrial or
The rule as to registration of assignments or transmissions applies where any share or interest is acquired, or where a person acquires any right to apply the design either exclusively or otherwise, see Designs Rules, 22.
The person entitled is to make application in Form K. (Designs Forms), stamped with the same fee as on registration (i.e., for a design for single articles in classes 13 and 14, 1s., for other classes, 10s.: for a design for a set of articles in a class, 17.). The particulars of title must be stated. Such particulars will relate in case of the design passing by will, to the probate of the will; in intestacy, to the letters of administration; on bankruptcy, to the trustee's certificate of appointment (Bankruptcy Act, 1883, s. 54); by assignment, agreement, or licence, to such assignment, agreement, or licence.
The application is to be accompanied by a declaration verifying the statements therein. Such declaration may be made, and the application signed by an agent duly authorised, to the satisfaction of the comptroller. (Designs Rules, 23-25). See also, s. 87.
Orders of Court rectifying register are to be entered (Designs Rules, 28).
56. There shall be paid in respect of applications and registration and other matters under this part of this Act such fees as may be from time to time, with the sanction of the Treasury, prescribed by the Board of Trade; and such fees shall be levied and paid to the account of Her Majesty's Exchequer in such manner as the Treasury shall from time to time direct.
For list of fees prescribed under this section, see 1st Schedule to Designs Rules.
Industrial and International Exhibitions.
57. The exhibition at an industrial or international exhibition, certified as such by the Board of
Trade, or the exhibition elsewhere during the period Sects. of the holding of the exhibition, without the privity 57, 58. or consent of the proprietor, of a design, or of any interarticle to which a design is applied, or the publica- exhibition tion, during the holding of any such exhibition, of a not to description of a design, shall not prevent the design invalidate from being registered, or invalidate the registration registrathereof, provided that both the following conditions are complied with; namely,
(a.) The exhibitor must, before exhibiting the design or article, or publishing a description of the design, give the comptroller the prescribed notice (a) of his intention to do. so; and
(b.) The application for registration must be made before or within six months from the date of the opening of the exhibition.
This section is practically a re-enactment of sect. 4 of the 28 & 29 Vict. c. 3 (1865), and sect. 3 of the 33 & 34 Vict. c. 27 (1870), repealed in the 3rd schedule to the Act.
The person desirous of exhibiting the design or article is first to obtain a certificate from the Board of Trade that the Exhibition is an industrial or international one, and then seven days before exhibiting the design or article, or publishing a description of it, he is to give notice to the Board in Form L. (Designs Forms), bearing a 5s. stamp, of his intention to exhibit or publish. A brief description of the design must be given, as well as a sketch or drawing of the same. (Designs Rules, 36.)
piracy of registered
58. During the existence of copyright in any Penalty on design(a.) It shall not be lawful for any person without design. the licence or written consent of the registered proprietor to apply such design,
(a) Form L (Designs Forms). Fee 5s.
Action for damages.
Piracy of a design.
or any fraudulent or obvious imitation thereof, in the class or classes of goods in which such design is registered for purposes of sale to any article of manufacture, or to any substance artificial or natural or partly artificial and partly natural; and (b.) It shall not be lawful for any person to publish or expose for sale any article of manufacture or any substance to which such design or any fraudulent or obvious imitation thereof shall have been so applied, knowing that the same has been so applied without the consent of the registered proprietor.
Any person who acts in contravention of this section shall be liable for every offence to forfeit a sum not exceeding fifty pounds to the proprietor of the design, who may recover such sum as a simple contract debt by action in any Court of competent jurisdiction.
59. Notwithstanding the remedy given by this Act for the recovery of such penalty as aforesaid, the registered proprietor of any design may (if he elects to do so) bring an action for the recovery of any damages arising from the application of any such design, or of any fraudulent or obvious imitation thereof for the purpose of sale, to any article of manufacture or substance, or from the publication, sale, or exposure for sale by any person of any article or substance to which such design or any fraudulent or obvious imitation thereof shall have been so applied, such person knowing that the proprietor had not given his consent to such application.
These two sections define what amounts to piracy of a design, and the remedy of the registered proprietor. (a.) The application of a design to any substance is made piracy, provided it be for "purposes of
sale," and the application be "in the class or Sect. 59.
'purpose of sale" is not to be restricted to sale
Ignorance of the registration of a design would
(b.) The publishing or exposing for sale of any article
For the corresponding sections of the 5 & 6 Vict. c. 100, see Copinger on Copyright, 2nd ed. p. 434. Sect. 7 of that Act used the words " cause to be done,” which are not found in the present section, and as to which see Mallet v. Howitt, W. N. (1879), 107.
Where the copyright has been infringed the registered Remedies proprietor may either sue for the penalty given by for piracy. sect. 58 or bring an action for damages under sect. 59.
The penalty of not more than 50l. may be recovered 1. Action as if it were a simple contract debt. for penalty. In England an action may be brought either in a County Court or in the High Court of Justice. if proceedings are taken in the High Court, then by sect. 5 of the County Courts Act, 1867, incorporated into the Judicature Act of 1873 by sect. 67, the plaintiff if he recovers a sum not exceeding 10l. may not be entitled to any costs, unless the Judge certify that there was sufficient reason for bringing such action in the Superior Court.
The infringement of copyright in a design is to be regarded as a tort, notwithstanding the fact that sect. 58 says the penalty is to be recovered "as a simple contract debt." These words have reference to the procedure to be adopted, and it is submitted that the action could not be said to be "founded on contract either within the meaning of the above section of the
Sects. 59, 60.
County Courts Act, 1867, or Order LXV. Rule 12 of the R. S. C. 1883.
In Scotland proceedings may be taken either in the Sheriffs' Court or the Court of Session. As to the practice in Court of Session, see Mackay's Practice.
In Ireland proceedings may be taken either in the Civil Bill Court of the county or in the High Court of Justice.
Instead of proceeding under sect. 58 the registered proprietor may elect to bring an ordinary action for damages. damages.
By the 21 & 22 Vict. c. 70, s. 8, which is repealed by the present Act, an action for damages for infringement of the design might have been brought in a County Court.
No provision is made for delivery up of unsold articles to which a pirated design has been applied, but see McCrea v. Holdsworth, 2 De Gex & Sm. 497.
60. In and for the purposes of this Act
Design" means any design applicable to any article of manufacture, or to any substance artificial or natural, or partly artificial and partly natural, whether the design is applicable for the pattern, or for the shape or configuration, or for the ornament thereof, or for any two or more of such purposes, and by whatever means it is applicable, whether by printing, painting, embroidering, weaving, sewing, modelling, casting, embossing, engraving, staining, or any other means whatever, manual, mechanical, or chemical, separate or combined, not being a design for a sculpture, or other thing within the protection of the Sculpture Copyright Act of the year 1814 (fifty-fourth George the Third, chapter fifty-six).
'Copyright" means the exclusive right to apply a design to any article of manufacture or to any such substance as aforesaid in the class or classes in which the design is registered.