Chapter VIII
EVIDENCE, ETC.
37. Evidence before the Controller.
37. Evidence before the Controller.—Subject to any rules made under Section 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.
| Index of Designs Act, 2000 |
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| Sections 1 to 10 |
| Sections 11 to 23 |
| Sections 24 to 36 |
| Sections 37 to 48 |
38. Certificate of Controller to be evidence.
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 authorized by this Act, or any rules made thereunder to make or do, shall be prima facie evidence of the entry having been made, and of the contents thereof, and of the matter or thing having been done or left undone.
39. Evidence of documents in patent office.
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 proofs as it considers necessary.
40. Applications and notices by post.
40. Applications and notices by post.—Any application, notice or other document authorized or required to be left, made or given at the patent officer or to the Controller, or to any other person under this Act, may be sent by post.
41. Declaration by infant, lunatic, etc.
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 upon 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.
42. Avoidance of certain restrictive conditions.
42. Avoidance of certain restrictive conditions.—(1) It shall not be lawful to insert—
(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; or
(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 licensor 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 licensor 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-section (1) shall not cease to be a condition falling within that sub-section 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 of Section 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.
Chapter IX
AGENCY
43. Agency.
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 under Section 125 of the Patents Act, 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.
Chapter X
POWERS, ETC., OF CENTRAL GOVERNMENT
44. Reciprocal arrangement with the United Kingdom and other convention countries or group of countries or inter-governmental organisations.
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 Untied Kingdom or any of other convention countries or group of countries or countries which are members of inter-governmental 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-governmental 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 organisation 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 “inter-governmental 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-section (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 of inter-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.
45. Report of the Controller to be placed before Parliament.
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.
46. Protection of security of India.
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 Indian 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.
47. Power of Central Government to make rules.
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-section (2) of Section 5;
(b) the time within which the registration is to be effected under sub-section (5) of Section 5;
(c) the classification of articles for registration under sub-section (1) of Section 6;
(d) the particulars of design to be published and the manner of their publication under Section 7;
(e) the manner of making claim under sub-section (1) of Section 8;
(f) the manner of making applications to the Controller under sub-section (5) of Section 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-section (1) of Section 10;
(h) the manner of making application and fee to be paid for extension of the period of copyright under and the fee payable thereto, sub-section (2) of Section 11;
(i) the manner of making application for restoration of design and the fee to be paid with it under sub-section (1) of Section 12;
(j) the manner of verification of statement contained in an application under sub-section (2) of Section 12;
(k) the additional fee to be paid for restoration of the registration of design under sub-section (1) of Section 13;
(l) the provisions subject to which the right of the registered proprietor shall be under sub-section (1) of Section 14;
(m) the number of exact representation or specimen of the design to be furnished to the Controller under clause (a) of sub-section (1) of Section 15;
(n) the mark, words or figures with which the article is to be marked denoting that the design is registered under clause (b) of sub-section (1) of Section 15;
(o) the rules to dispense with or modify as regards any class or description of articles and any of the requirements of Section 15 as to marking under sub-section (2) of that section;
(p) the fee to be paid for and the manner of inspection under sub-section (1) of Section 17;
(q) the fee to be paid to obtain a certified copy of any design under sub-section (2) of Section 17;
(r) the fee on payment of which the Controller shall inform under Section 18;
(s) the form for giving notice to the Controller under clause (a) of the proviso to Section 21;
(t) the fee to be paid in respect of the registration of designs and application therefor, and in respect of other matters relating to designs under sub-section (1) of Section 24;
(u) the fee to be paid for giving certified copy of any entry in the register under Section 26;
(v) the fee to be accompanied with the requests in writing for correcting any clerical error under Section 29;
(w) the form in which an application for registration as proprietor shall be made and the manner in which the Controller shall cause an entry to be made in the register of the assignment, transmission or other instrument effecting the title under sub-section (1) of Section 30;
(x) the form in which an application for title shall be made and the manner in which the Controller shall cause notice of the interest to be entered in the register of designs with particulars of the instrument, if any, creating such interest under sub-section (2) of Section 30;
(y) the manner of filing an application for registration and for making application for extension of time as referred to in sub-section (3) of Section 30;
(z) the manner of making application to the Controller for rectification of register under sub-section (1) of Section 31;
(za) the manner in which the notice of rectification shall be served on the Controller under sub-section (4) of Section 31;
(zb) the rules regulating the proceedings before the Controller under Section 32;
(zc) the time which shall be granted to the applicants for being heard by the Controller under Section 33;
(zd) the fee to be accompanied with an appeal under sub-section (1) of Section 36;
(ze) any other matter which is required to be, or may be, prescribed.
(3) The power to make rules under this section shall be subject to the conditions of the rules being made after previous publication.
(4) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that Act.
Chapter XI
REPEAL AND SAVING
48. Repeal and savings.
48. Repeal and savings.—(1) The Designs Act, 1911 is hereby repealed.
(2) Without prejudice to the provisions contained in the General Clauses Act, 1897 with respect to repeals, any notification, rule, order, requirement, registration, certificate, notice, decision, determination, direction, approval, authorisation, consent, application, request or thing made, issued, given or done under the Designs Act, 1911, shall, in force at the commencement of this Act, continue to be in force and have effect as if made, issued, given or done under the corresponding provisions of this Act.
(3) The provisions of this Act shall apply to all applications for registration of designs pending at the commencement of this Act and to any proceedings consequent thereon and to any registration granted in pursuance thereof.
(4) Notwithstanding anything contained in this Act, any proceeding pending in any court at the commencement of this Act may be continued in that court as if this Act has not been passed.
(5) Notwithstanding anything contained in sub-section (2), the date of expiration of the copyright in the designs registered before the commencement of this Act shall, subject to the provisions of this Act, be the date immediately after the period of five years for which it was registered or the date immediately after the period of five years for which the extension of the period of copyright for a second period from the expiration of the original period has been made.
| Index of Designs Act, 2000 |
|---|
| Sections 1 to 10 |
| Sections 11 to 23 |
| Sections 24 to 36 |
| Sections 37 to 48 |
