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Loi de 1953 sur les dessins et modèles industriels (mise à jour le 20 avril 2010), Nouvelle-Zélande

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Détails Détails Année de version 2010 Dates Entrée en vigueur: 1 janvier 1955 Adopté/e: 26 novembre 1953 Type de texte Principales lois de propriété intellectuelle Sujet Dessins et modèles industriels, Mise en application des droits, Organe de réglementation de la PI, Propriété industrielle Notes Cette loi a été modifiée en dernier lieu le 20 avril 2010 par la loi de 2010 portant modification de la loi sur les dessins et modèles (voir la section 46(3) pour plus de détails).

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Designs Act 1953

Public Act 1953 No 65 Date of assent 26 November 1953

Contents

Page Title 3 1 Short Title and commencement 3 2 Interpretation 3 3 Commissioner of Designs 6 4 Assistant Commissioners of Designs and other officers 6

Registrable designs and proceedings for registration 5 Designs registrable under Act 7 6 Proprietorship of designs 7 7 Proceedings for registration 8 8 Registrationofsamedesigninrespectofotherarticles,etc 8 9 Provisions for ensuring secrecy in respect of designs 9

relevant for defence purposes 10 Provisions as to confidential disclosure, etc 11

Effect of registration, etc

11 Right given by registration 12

Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this eprint.

Ageneraloutlineofthesechangesissetoutinthenotesattheendofthiseprint,togetherwith other explanatory material about this eprint.

Powers and duties of Commissioner

36 Exercise of discretionary powers of Commissioner 33 37 Commissioner may grant extension of time 33 37A Additional provisions for extending time limits 33 38 Costs and security for costs 35 39 Evidence before Commissioner 35

2

Reprinted as at20 April 2010 Designs Act 1953 s 2
40 Recognition of agents 36
41 Commissioner may dispense with production of probate 36
or letters of administration in certain cases
Offences
42 Offences in respect of designs required to be kept secret 38
43 Falsification of register, etc 38
44 Fine for falsely representing a design as registered 39
Supplemental
45 Hours of business 39
45A Closing of Patent Office at short notice 40
46 Regulations 40
47 Fees 42
48 Service of notices, etc, by post 42
49 Annual report 43
50 Application of Act to Tokelau 43
51 Saving 43
52 Repeals and savings 43
Schedule 44
Enactments repealed

An Act to consolidate and amend certain enactments relating to designs

BE IT ENACTED by the General Assembly of New Zealand in Parliament assembled, and by the authority of the same, as follows:

1 Short Title and commencement

(1)
This Act may be cited as the Designs Act 1953.
(2)
ThisActshallcomeintoforceonadaytobeappointedforthe commencementthereofbytheGovernor-GeneralbyProclamation.

2 Interpretation

(1) In this Act, unless the context otherwise requires,—

Article means any article of manufacture; and includes any part of an article if that part is made and sold separately

Reprinted as ats2 Designs Act 1953 20 April 2010

Assignee includes the personal representative of a deceased assignee;andreferencestotheassigneeofanypersoninclude referencestotheassigneeofthepersonalrepresentativeorassignee of that person

Commissioner means the Commissioner of Designs Commonwealth means the British Commonwealth of Nations; and includes every territory for whose international

relations the Government of any country of the Commonwealth is responsible Convention country, in any provision of this Act, means an

entityforthetimebeingdeclaredbyanorderundersection 20 to be a convention country for the purposes of that provision Convention country: this definition was substituted, as from 14 October 1999,

by section 2(2) Designs Amendment Act 1999 (1999 No 120).

Copyright hasthemeaningassignedtoitbysubsection (1) of

section 11 of this Act Court means the High Court Court: the words “High Court” were substituted for the words “Supreme

Court” , as from 1 April 1980, pursuant to section 12 Judicature Amendment Act 1979 (1979 No 124).

Design means features of shape, configuration, pattern, or ornament applied to an article by any industrial process or means, being features which in the finished article appeal to and are judged solely by the eye; but does not include a method or principle of construction or features of shape or configuration which are dictated solely by the function which the article to be made in that shape or configuration has to perform

Government Department means any Department or instru

ment of the Executive Government of New Zealand JournalmeansthePatentOfficeJournalpublishedundersub section (1) of section 112 of the Patents Act 1953

Prescribed means prescribed by regulations made under this

Act Proprietor hasthemeaningassignedtoitbysection 6 ofthis Act

Reprinted as at20 April 2010 Designs Act 1953 s2

Registered proprietor means the person or persons for the time being entered in the register of designs as proprietor of the design

Setofarticles meansanumberofarticlesofthesamegeneral character ordinarily on sale or intended to be used together, to each of which the same design, or the same design with modifications orvariationsnot sufficient toalterthecharacter or substantially to affect the identity thereof, is applied.

(2)
Any reference in this Act to an article in respect of which a design is registered shall, in the case of a design registered in respect of a set of articles, be construed as a reference to any article of that set.
(3)
AnyquestionarisingunderthisActastowhetheranumberof articles constitute a set of articles shall be determined by the Commissioner; and notwithstanding anything in this Act any determinationoftheCommissionerunderthissubsectionshall be final.
(4)
Forthepurposesofsubsection (1) ofsection21andofsection 23 of this Act, the expression personalrepresentative, in relationtoadeceasedperson,includesthelegalrepresentativeof the deceased appointed in any country outside New Zealand.
(5)
In the case of an entity that is a convention country but is not a state, part of a state, or a territory for whose international relations a state is responsible,—

(a) A reference in this Act to—

(i)
Application for protection in a country; or
(ii)
Application for protection in respect of a coun

try,— mustbereadasareferencetoapplicationforprotection under the rules of the entity:

(b)
AreferenceinthisActtothelawofaconventioncountrymustbereadasareferencetotherulesoftheentity:
(c)
AreferenceinthisActtotheGovernmentofaconventioncountrymustbereadasareferencetothegoverning body of the entity.

Compare: Registered Designs Act 1949, s 44 (UK); 1921-22 No 18 s 2

Subsection (5)was inserted,as from14October1999, by section 2(3) Designs Amendment Act 1999 (1999 No 120).

s 3 Designs Act 1953 Reprinted as at20 April 2010
3 Commissioner of Designs
(1) There may from time to time be appointed under the State
Sector Act 1988 some fit person to be the Commissioner of
Designs.
(2) The person who at the commencement of this Act holds the
office of Commissioner of Patents, Designs, and Trade Marks
under the Patents, Designs, and Trade Marks Act 1921-22
shall be deemed to have been appointed as Commissioner of
Designs under this Act.
Compare: 1921-22 No 18 s 113
Section3wasamended,asfrom1January1963,bysection77(1)StateServices Act 1962 (1962 No 132) by substituting the expression “State Services Act 1962”for the expression “Public Service Act 1912”.
The expression “State Sector Act 1988” was substituted for the expression “State Services Act 1962”, as from 1 April 1988, pursuant to section 88(2) State Sector Act 1988 (1988 No 20).
4 Assistant Commissioners of Designs and other officers
(1) There may from time to time be appointed under the State
Sector Act 1988—
(a) One or more fit persons to be Assistant Commissioners
of Designs:
(b) Such other officers and employees as may be necessary
for carrying out the purposes of this Act.
(2) EveryAssistantCommissionerofDesignssoappointed,while
he remains in office, shall have and may exercise, subject to
the control and direction of the Commissioner, all the powers,
duties, and functions of the Commissioner, and every refer
ence in this or any other Act to the Commissioner shall, so
far as may be necessary for the purpose of giving effect to the
provisions of this section, be deemed to include a reference to
every Assistant Commissioner of Designs.
(3) The person who at the commencement of this Act holds the
office of Deputy Commissioner of Patents, Designs, and
TradeMarksunderthePatents,Designs,andTradeMarksAct
1921-22 shall be deemed to have been appointed an Assistant
Commissioner of Designs under this Act.
Compare: 1921-22 No 18 ss 114, 115

Reprinted as at20 April 2010 Designs Act 1953 Part 5 s 6

Section4wasamended,asfrom1January1963,bysection77(1)StateServices Act 1962 (1962 No 132) by substituting the expression “State Services Act 1962”for the expression “Public Service Act 1912”.

The expression “State Sector Act 1988” was substituted for the expression “State Services Act 1962” , as from 1 April 1988, pursuant to section 88(2) State Sector Act 1988 (1988 No 20).

Registrable designs and proceedings for registration 5 Designs registrable under Act

(1)
Subject to the following provisions of this section, a design may, upon application made by the person claiming to be the proprietor,beregisteredunderthisActinrespectofanyarticle or set of articles specified in the application.
(2)
SubjecttotheprovisionsofthisAct,adesignshallnotberegistered thereunder unless it is new or original and in particular shall not be so registered in respect of any article if it is the same as a design which before the date of the application for registration has been registered or published in New Zealand inrespectofthesameoranyotherarticleordiffersfromsucha designonlyinimmaterialdetailsorinfeatureswhicharevariants commonly used in the trade.
(3)
Regulations made under this Act may provide for excluding fromregistrationunderthisActdesignsforsucharticles,being articles which are primarily literary or artistic in character, as may be specified in the regulations. Compare: Registered Designs Act 1949,s1 (UK); 1921-22 No 18 ss 2, 52

6 Proprietorship of designs

(1)
Subjecttotheprovisionsofthissection,theauthorofadesign shall be treated for the purposes of this Act as the proprietor of the design: Provided that where the design is executed by the author for another person for good consideration, that other person shall be treated for the purposes of this Act as the proprietor.
(2)
Where a design, or the right to apply a design to any article, becomes vested, whether by assignment, transmission, or operationoflaw,inanypersonotherthantheoriginalproprietor, either alone or jointly with the original proprietor, that other

7 Reprinted as atPart 5 s 7 Designs Act 1953 20 April 2010

person,or,asthe casemaybe,theoriginalproprietorandthat other person, shall be treated for the purposes of this Act as the proprietor of the design or as the proprietor of the design in relation to that article. Compare: Registered Designs Act 1949, s 2 (UK); 1921-22 No 18 s 52(1)

7 Proceedings for registration

(1)
An application for the registration of a design shall be made intheprescribedformandshallbefiledatthePatentOfficein the prescribed manner.
(2)
Forthepurposeofdecidingwhetheradesignisnewororiginal theCommissionermaymakesuchsearches,ifany,ashethinks fit.
(3)
The Commissioner may refuse any application for the registration of a design or may register the design in pursuance of the application without modification or subject to such modifications as he thinks fit.
(4)
An application which, owing to any default or neglect on the part of the applicant, has not been completed so as to enable registration to be effected within such time as may be prescribed shall be deemed to be abandoned.
(5)
Except as otherwise expressly provided by this Act, a design when registered shall be registered as of the date on which the application for registration was made, or such other date (whether earlier or later than that date) as the Commissioner may in any particular case direct: Provided that no proceedings shall be taken in respect of any infringement committed before the date on which the certificate of registration of the design under this Act is issued.
(6)
AnappealtotheCourtshallliefromanydecisionoftheCom missioner under subsection (3) of this section. Compare: Registered Designs Act 1949, s 3 (UK); 1921-22 No 18 s 52

8 Registrationofsamedesigninrespectofotherarticles,etc

(1) Where the registered proprietor of a design registered in respect of any article makes an application—

(a) Forregistration,inrespectofoneormoreotherarticles, of the registered design; or

Reprinted as at20 April 2010 Designs Act 1953 Part 5 s 9

(b) For registration, in respect of the same or one or more other articles, of a design consisting of the registered designwithmodificationsorvariationsnotsufficientto alter the character or substantially to affect the identity thereof,—

the application shall not be refused and the registration made on that application shall not be invalidated by reason only of the previous registration or publication of the registered design: Providedthattheperiodofcopyrightinadesignregisteredby virtue of this section shall not extend beyond the expiration of the original and any extended period of copyright in the original registered design.

(2) Whereanypersonmakesanapplicationfortheregistrationof a design in respect of any article and either—

(a)
That design has been previously registered by another person in respect of some other article; or
(b)
The design to which the application relates consists of a design previously registered by another person in respect of the same or some other article with modificationsorvariationsnotsufficienttoalterthecharacteror substantially to affect the identity thereof,—

then,if atany time while the application is pending the applicantbecomestheregisteredproprietorofthedesignpreviously registered,theforegoingprovisionsofthissectionshallapply as if at the time of making the application the applicant had been the registered proprietor of that design. Compare: Registered Designs Act 1949, s 4 (UK); 1921-22 No 18 s 53; 1939

No 26 s 69

9 Provisions for ensuring secrecy in respect of designs relevant for defence purposes

(1) Where, either before or after the commencement of this Act, an application for the registration of a design has been made, and it appears to the Commissioner that the design is one of a class notified to him by the Minister of Defence as relevant fordefencepurposes,orisintheopinionoftheCommissioner likelytobevaluablefordefencepurposes, hemaygivedirections for prohibiting or restricting the publication of informa

9 Reprinted as atPart 5 s 9 Designs Act 1953 20 April 2010

tion with respect to the design, or the communication of such information to any person or class of persons specified in the directions.

(2)
Regulations may be made under this Act for securing that the representation or specimen of a design in the case of which directions are given under this section shall not be open to inspectionatthePatentOfficeduringthecontinuanceinforce of the directions.
(3)
Where the Commissioner gives any such directions as aforesaid, he shall give notice of the application and of the directions to the Minister of Defence, and thereupon the following provisions shall have effect, that is to say:
(a)
The Minister of Defence shall, upon receipt of the notice, consider whether the publication of the design would be prejudicial to the defence of New Zealand, and, unless a notice under paragraph (c) of this sub section has previously been given by the Minister of Defence to the Commissioner, shall reconsider that question before the expiration of 9 months from the date of filing of the application for registration of the design and at least once in every subsequent year:
(b)
Forthepurposeaforesaid,theMinisterofDefencemay, atanytimeafterthedesignhasbeenregisteredor, with the consent of the applicant, at any time before the design has been registered, inspect the representation or specimen of the design filed in pursuance of the application:
(c)
Ifuponconsiderationofthedesignatanytimeitappears to the Minister of Defence that the publication of the design would not, or would no longer, be prejudicial to the defence of New Zealand, the Minister of Defence shall give notice to the Commissioner to that effect:
(d)
On the receipt of any such notice the Commissioner shallrevokethedirectionsandmay,subjecttosuchconditions,ifany,ashethinksfit,extendthetimefordoing anything required or authorised to be done by or under this Act in connection with the application or registration, whether or not that time has previously expired.

Reprinted as at20 April 2010 Designs Act 1953 Part 5 s 10

(4) NopersonresidentinNewZealandshall,exceptundertheauthorityofawrittenpermitgrantedbyoronbehalfoftheCommissioner, make or cause to be made any application outside New Zealand for the registration of a design of any class prescribed for the purposes of this subsection unless—

(a)
An application for registration of the same or substantially the same design has been made in New Zealand not less than 6 weeks before the application outside New Zealand; and
(b)
Either no directions have been given under subsection

(1) of this section in relation to the application in New

Zealand or all such directions have been revoked: Provided that this subsection shall not apply in relation to a design for which an application for protection has first been filed in a country outside New Zealand by a person resident outside New Zealand.

Compare: Registered Designs Act 1949, s 5 (UK)

10 Provisions as to confidential disclosure, etc

(1)
An application for the registration of a design shall not be re-fused,andtheregistrationofadesignshallnotbeinvalidated, by reason only of—
(a)
The disclosure of the 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; or
(b)
The disclosure of the design in breach of good faith by any person other than the proprietor of the design; or
(c)
In the case of a new or original textile design intended forregistration,theacceptanceofafirstandconfidential order for goods bearing the design.
(2)
An application for the registration of a design shall not be re-fused,andtheregistrationofadesignshallnotbeinvalidated, by reason only—

(a) That a representation of the design, or any article to which the design hasbeenapplied, hasbeendisplayed, with the consent of the proprietor of the design, at an international or industrial exhibition declared as such

11 Reprinted as atPart 11 s 11 Designs Act 1953 20 April 2010

by the Commissioner by notice in the Journal, whether the exhibition is held in New Zealandor elsewhere; or

(b)
Thatafteranysuchdisplayasaforesaid,andduringthe period of the exhibition, a representation of the design or any such article as aforesaid has been displayed by any person without the consent of the proprietor; or
(c)
That a representation of the design has been published in consequence of any such display as is mentioned in paragraph (a) of this subsection,—

iftheapplicationforregistrationofthedesignismadenotlater than 6 months after the date ofthe opening of the exhibition.

(3) An application for the registration of a design shall not be re-fused,andtheregistrationofadesignshallnotbeinvalidated, byreasononlyofthecommunicationofthedesignbytheproprietor thereof to a Government Department or to any person authorised by a Government Department to consider the merits of the design, or of anything done in consequence of such a communication. Compare: Registered Designs Act 1949, s 6 (UK);1921-22 No18 ss 58, 63 Subsection (2)(a) was amended, as from 12 November 1980, by section 5(2) ShopTradingHoursAmendmentAct1980(1980No36)byomittingthewords“or at an exhibition authorised by the Governor-General by Order in Council under the Exhibitions Act 1910”.

Subsection (2)(a) was amended, as from 2 September 1996, by section 2 Designs Amendment Act 1996 (1996 No 118) by substituting the words “CommissionerbynoticeintheJournal”forthewords“Governor-Generalbynotice in the Gazette”.

Effect of registration, etc 11 Right given by registration

(1) The registration of a design under this Act shall give to the registeredproprietorthecopyrightinthedesign,thatistosay, theexclusiverightinNewZealandtomakeorimportforsale or for use for the purposes of any trade or business, or to sell, hire, or offer for sale or hire, any article in respect of which the design is registered, being an article to which the registered design or a design not substantially different from the registered design has been applied, and to make anything for enabling any such article to be made as aforesaid, whether in New Zealand or elsewhere.

Reprinted as at20 April 2010 Designs Act 1953 Part 11 s 13

(2) Subject to the provisions of this Act and of subsection (3) of section7ofthe CrownProceedingsAct1950 ,theregistration of a design shall have the same effect against the Crown as it has against a subject. Compare: Registered Designs Act1949,s7 (UK);1921-22 No18ss 56(1), 66

12 Period of copyright

(1)
Copyrightinaregistereddesignshall,subjecttotheprovisions of this Act, subsist for a period of 5 years from the date of registration.
(2)
The Commissioner shall extend the period of copyright for a second period of 5 years from the expiration of the original period,andforathirdperiodof5yearsfromtheexpirationof thesecondperiod,ifanapplicationforextensionoftheperiod ofcopyrightforthesecondperiodorthirdperiodismadeinthe prescribed form and the prescribed fee is also paid before the expiration of the original period or the second period, as the casemaybe,orifsuchapplicationismadeandthefeeispaid withinsuchfurtherperiod(notexceeding6months)asmaybe specified in a request to the Commissioner and accompanied by the prescribed additional fee. Compare: Registered Designs Act 1949, s 8 (UK); 1921-22 No 18 s 56

Subsection (2)was substituted,asfrom20October1972,bysection2 Designs Amendment Act 1972 (1972 No 53).

13 Exemption of innocent infringer from liability for damages, etc

(1) Inproceedingsfortheinfringementofcopyrightinaregistered design, damages or account of profits shall not be awarded againstadefendantwhoprovesthatatthedateoftheinfringementhewasnotawareandhadnoreasonablegroundforsupposing that the design was registered in New Zealand; and a personshallnotbedeemedtohavebeenawareortohavehad any reasonable ground for supposing as aforesaid by reason only of the marking of an article with the word registered or any abbreviation thereof, or any word or words expressing or implying that the design applied to the article has been registered,unlessthewordorwordsareaccompaniedbythewords

Reprinted as atPart 11 s 14 Designs Act 1953 20 April 2010

New Zealand or the letters NZ and by the number of the design.

(2) Nothing in this section shall affect the power of the Court to grant an injunction in any proceedings for infringement of copyright in a registered design. Compare: Registered Designs Act 1949, s 9 (UK); 1921-22 No 18 s 38

14 Compulsory licence in respect of registered design

(1)
Atanytimeafteradesignhasbeenregisteredanypersoninterested may apply to the Commissioner for the grant of a compulsorylicenceinrespectofthe designon the ground that the designisnotappliedinNewZealandbyanyindustrialprocess or means to the article in respect of which it is registered to suchanextentasisreasonableinthecircumstancesofthecase; andtheCommissionermaymakesuchorderontheapplication as he thinks fit.
(2)
An order for the grant of a licence shall, without prejudice to any other method of enforcement, have effect as if it were a deedexecutedbytheregisteredproprietorandallothernecessary parties, granting a licence in accordance with the order.
(3)
No order shall be made under this section which would be at variancewithanytreaty,convention,arrangement,orengagement applying to New Zealand and any convention country.
(4)
An appeal to the Court shall lie from any order of the Commissioner under this section. Compare: Registered Designs Act 1949, s 10 (UK); 1921-22 No 18 s 62

15 Cancellation of registration

(1)
TheCommissionermay,uponarequestmadeintheprescribed manner by the registered proprietor, cancel the registration of a design.
(2)
Atanytimeafteradesignhasbeenregisteredanypersoninterested may apply to the Commissioner for the cancellation of theregistrationofthedesignonthegroundthatthedesignwas not,atthedateoftheregistrationthereof,newororiginal,oron any other ground on which the Commissioner could have refusedtoregisterthedesign;andtheCommissionermaymake such order on the application as he thinks fit.

Reprinted as at20 April 2010 Designs Act 1953 Part 16 s 16

(3) An appeal to the Court shall lie from any order of the Com missioner under subsection (2) of this section. Compare: Registered Designs Act 1949, s 11 (UK); 1921-22 No 18 s 61

Use of registered designs for services of the Crown 16 Use of registered designs for services of the Crown

(1)
Notwithstanding anything in this Act, any Government Department, and any person authorised in writing by a Government Department, may use any registered design for the services of the Crown in accordance with the following provisions of this section.
(2)
If and so far as the design has, before the date of registration thereof, been duly recorded by or applied by or on behalf of a Government Department otherwise than in consequence of the communication of the design directly or indirectly by the registeredproprietororanypersonfromwhomhederivestitle, anyuseofthedesignbyvirtueofthissectionmaybemadefree of any royalty or other payment to the registered proprietor.
(3)
If and so far as the design has not been so recorded or appliedasaforesaid,anyuseofthedesignmadebyvirtueofthis section at any time after the date of registration thereof, or in consequenceofanysuchcommunicationasaforesaid,shallbe made upon such terms as may be agreed upon, either before oraftertheuse, betweentheGovernment Department and the registered proprietor with the approval of the Minister of Finance,orasmayindefaultofagreementbedeterminedbythe Court on a reference under section 18 of this Act.
(4)
TheauthorityofaGovernmentDepartmentinrespectofadesign may be given under this section either before or after the designisregisteredandeitherbeforeoraftertheactsinrespect of which the authority is given are done, and may be given to any person whether or not he is authorised directly or indirectly by the registered proprietor to use the design.
(5)
Where any use of a design is made by or with the authority of a Government Department under this section, then, unless it appears to the Department that it would be contrary to the public interest so to do, the Department shall notify the regis

15 Reprinted as atPart 16 s 17 Designs Act 1953 20 April 2010

tered proprietor as soon as practicable after the use is begun, and furnish him with such information as to the extent of the use as he may from time to time require.

(6)
For the purposes of this section and of section 17 of this Act, any use of a design for the supply to the Government of any country outside New Zealand, in pursuance of any agreement or arrangement between Her Majesty’s Government in New Zealand and the Government of that country, of articles required for the defence of that country shall be deemed to be a useofthedesignfortheservicesoftheCrown;andthepower ofaGovernmentDepartmentorapersonauthorisedbyaGovernment Department under this section to use a design shall include power—
(a)
To sell such articles to the Government of any country in pursuance of any such agreement or arrangement as aforesaid; and
(b)
Toselltoanypersonanyarticlesmadeintheexerciseof thepowersconferredbythissectionwhicharenolonger required for the purpose for which they were made.
(7)
The purchaser of any articles sold in the exercise of powers conferred by this section, and any person claiming through him, shall have power to deal with them in the same manner as if the rights in the registered design were held on behalf of Her Majesty. Compare: Registered Designs Act 1949, First Schedule, para 1 (UK)

17 Rights of third parties in respect of Crown use

(1) In relation to any use of a registered design, or a design in respectofwhichanapplicationforregistrationispending,made for the services of the Crown—

(a)
ByaGovernmentDepartmentorapersonauthorisedby aGovernmentDepartmentundersection 16 ofthisAct; or
(b)
Bytheregisteredproprietororapplicantforregistration

to the order of a Government Department,— theprovisionsofanylicence,assignment,oragreementmade, whether before or after the commencement of this Act, between the registered proprietor or applicant for registration or any person who derives title from him or from whom he de

Reprinted as at20 April 2010 Designs Act 1953 Part 16 s 17

rivestitleandanypersonotherthanaGovernmentDepartment shallbeofnoeffectsofarasthoseprovisionsrestrictorregulate the use of the design, or any model, document, or informationrelatingthereto,orprovideforthemakingofpayments in respect of any such use, or calculated by reference thereto; andthereproductionorpublicationofanymodelordocument inconnectionwiththesaiduseshallnotconstituteaninfringement of any copyright subsisting in the model or document.

(2)
Where an exclusive licence granted otherwise than for royaltiesorotherbenefitsdeterminedbyreferencetotheuseofthe design is in force under the registered design, then,—
(a)
In relation to any use of the design which, but for the provisions of this section and section 16 of this Act, would constitute an infringement of the rights of the licensee, subsection (3) of section 16 of this Act shall have effect as if for the reference to the registered proprietorthereweresubstitutedareferencetothelicensee; and
(b)
In relation to any use of the design by the licensee by virtueofanauthoritygivenundersection 16 ofthisAct, thatsectionshall have effect as if subsection(3)ofthat section were omitted.
(3)
Subject to the provisions of subsection (2) of this section, where the registered design or the right to apply for or obtain registration of the design has been assigned to the registered proprietorinconsiderationofroyaltiesorotherbenefitsdetermined by reference to the use of the design, then,—
(a)
In relation to any use of the design by virtue of section 16 of this Act, subsection (3) of that section shall have effect as if the reference to the registered proprietor includedareferencetotheassignor,andanysumpayable by virtue of that subsection shall be divided between the registered proprietor and the assignor in such proportionasmaybeagreeduponbetweenthemorasmay in default of agreement be determined by the Court on a reference under section 18 of this Act; and
(b)
Inrelationtoanyuseofthedesignmadefortheservices oftheCrownbytheregisteredproprietortotheorderof aGovernmentDepartment,subsection (3) ofsection16

Reprinted as atPart 16 s 18 Designs Act 1953 20 April 2010

ofthisActshallhaveeffectasifthatuseweremadeby virtue of an authority given under that subsection.

(4) Where, under subsection (3) of section 16 of this Act, pay ments are required to be made by a Government Department to a registered proprietor in respect of any use of a design, any person being the holder of an exclusive licence under the registered design (not being such a licence as is mentioned in subsection (2) of this section) authorising him to make that use of the design shall be entitled to recover from the registered proprietor such part (if any) of those payments as may beagreeduponbetweenthatpersonandtheregisteredproprietor, or as may in default of agreement be determined by the Court under section 18 of this Act to be just having regard to any expenditure incurred by that person—

(a)
In developing the said design; or
(b)
In making payments to the registered proprietor, other than royalties or other payments determined by reference to the use of the design, in consideration of the licence,—

andif,atanytimebeforetheamountofanysuchpaymenthas been agreed upon between the Government Department and theregisteredproprietor,thatpersongivesnoticeinwritingof hisinteresttotheDepartment,anyagreementastotheamount ofthatpaymentshallbeofnoeffectunlessitismadewithhis consent.

(5) In this paragraph exclusive licence means a licence from the registered proprietor which confers on the licensee, or on the licenseeandpersonsauthorisedbyhim,totheexclusionofall other persons (including the registered proprietor), any right in respect of the registered design. Compare: Registered Designs Act 1949, First Schedule, para 2 (UK)

18 Reference of disputes as to Crown use

(1) Any dispute as to the exercise by a Government Department or a person authorised by a Government Department of the powers conferred by section 16 of this Act, or as to terms for the use of a design for the services of the Crown thereunder, or as to the right of any person to receive any part of a paymentmadeinpursuanceofsubsection (3) ofthatsection,may

Reprinted as at20 April 2010 Designs Act 1953 Part 16 s 19

be referred to the Court by either party to the dispute in such manner as may be prescribed by rules of Court.

(2)
In any proceedings under this section to which a Government Department is a party, the Department may,—
(a)
Iftheregisteredproprietorisapartytotheproceedings, apply for cancellation of the registration of the design uponanygrounduponwhichtheregistrationofadesign may be cancelled on an application to the Court under section 28 of this Act:
(b)
In any case, put in issue the validity of the registration of the design without applying for its cancellation.
(3)
Ifinsuchproceedingsasaforesaidanyquestionariseswhether adesignhasbeenrecordedorappliedasmentionedinsection 16 of this Act, and the disclosure of any document recording thedesign,orofanyevidenceoftheapplicationthereof,would in the opinion of the Department be prejudicial to the public interest, thedisclosure maybemadeconfidentially to counsel fortheotherpartyortoanindependentexpertmutuallyagreed upon.
(4)
In determining under this paragraph any dispute between a Government Department and any person as to terms for the use of a design for the services of the Crown, the Court shall haveregard toany benefitorcompensationwhichthat person or any person from whom he derives title may have received, or may be entitled to receive, directly or indirectly from any Government Department inrespect of the design in question.
(5)
In any proceedings under this section the Court may at any time order the whole proceedings or any question or issue of factarisingthereintobereferredtoaspecialorofficialreferee oranarbitratoronsuchtermsastheCourtmaydirect;andreferencestotheCourtintheforegoingprovisionsofthissection shall be construed accordingly. Compare: Registered Designs Act 1949, First Schedule, para 3 (UK)

19 Special provisions as to Crown use during emergency

(1) During any period of emergency within the meaning of this sectionthepowersexercisableinrelationtoadesignbyaGovernmentDepartment,orapersonauthorisedbyaGovernment Department under section 16 of this Act, shall include power

19 Reprinted as atPart 16 s 19 Designs Act 1953 20 April 2010

tousethedesignforanypurposewhichappearstotheDepartment necessary or expedient—

(a)
For the efficient prosecution of any war in which Her Majesty may be engaged; or
(b)
For the maintenance of supplies and services essential to the life of the community; or
(c)
For securing a sufficiency of supplies and services essential to the well-being of the community; or
(d)
For promoting the productivity of industry, commerce, and agriculture; or
(e)
For fostering and directing exports and reducing imports, or imports of any classes, from all or any countries and for redressing the balance of trade; or
(f)
Generally for ensuring that the whole resources of the communityareavailableforuse,andareused,inamanner bestcalculated to serve the interests of thecommunity; or
(g)
For assisting the relief of suffering and the restoration anddistributionofessentialsuppliesandservicesinany partoftheCommonwealthoroftheRepublicofIreland or in any foreign countries that are in grave distress as a result of war; or
(h)
Forprovidingorsecuringsuppliesandservicesrequired forthedefenceofanypartoftheCommonwealthorfor the maintenance or restoration of peace and security in anypartoftheworld,orforanymeasuresarisingoutof a breach or apprehended breach of peace in any part of the world; or
(i)
For preventing supplies or services being disposed of inamannerprejudicialtothedefenceofanypartofthe Commonwealth or to peace and security in any part of the world or to any such measures as aforesaid,—

andanyreferenceinsections 16to18 ofthisActtotheservices oftheCrownshallbeconstruedasincludingareferencetothe purposes aforesaid.

(2) Inthissectiontheexpressionperiodofemergencymeansany periodbeginningonsuchdateasmaybedeclaredbyOrderin CouncilpublishedintheGazette tobethecommencement,and

Reprinted as at20 April 2010 Designs Act 1953 Part 20 s 21

ending on such date as may be so declared to be the termination,ofaperiodofemergencyforthepurposeofthissection.

(3) All Orders in Council made under this section shall be laid before Parliament within 28 days after the date of the making thereof if Parliament is then in session, and, if not, shall be laid before Parliament within 28 days after the date of the commencement of the next ensuing session. Compare: Registered Designs Act 1949, First Schedule, para 4 (UK)

International arrangements 20 Orders in Council as to convention countries

Forthepurposeofgivingeffecttoanyinternationalagreement orarrangementtowhichNewZealandisapartyorthatapplies toNewZealand,theGovernor-GeneralmaybyOrderinCouncil declare that any entity specified in the order that is a party totheagreementorarrangementortowhichtheagreementor arrangementapplies(whetherastate,partofastate,aterritory for whose international relations a state is responsible, a political union,aninternational organisation,orany otherentity) is, for the purposes of all or any of the provisions of this Act, a convention country. Section 20 was substituted, as from 14 October 1999, by section 2(1) Designs

Amendment Act 1999 (1999 No 120). See section 2(4) of that Act as to this substitution not affecting any order made under the original section 20.

21 Registration of design where application for protection in convention country has been made

(1)
Anapplicationforregistrationofadesigninrespectofwhich protection has been applied for in a convention country may be made in accordance with the provisions of this Act by the person by whom the application for protection was made or his personal representative or assignee: Provided that no application shall be made by virtue of this section after the expiration of 6 months from the date of the application for protection in a convention country or, where morethan onesuch application forprotectionhas been made, from the date of the first application.
(2)
A design registered on an application made by virtue of this section shall be registered as of the date of the application for

21 Reprinted as atPart 20 s 21 Designs Act 1953 20 April 2010

protection in the convention country, or where more than one such application for protection has been made, the date of the first such application: Provided that no proceedings shall be taken in respect of any infringement committed before the date on which the certificate of registration of the design under this Act is issued.

(3)
An application for the registration of a design made by virtue of this section shall not be refused, and the registration of a designonsuchanapplicationshallnotbeinvalidated,byreasononlyoftheregistrationorpublicationofthedesigninNew Zealand during the period specified in the proviso to subsection (1) ofthissectionasthatwithinwhichtheapplicationfor registration may be made.
(4)
Where a person has applied for protection for a design by an application which,—
(a)
In accordance with the terms of a treaty subsisting between 2 or more convention countries, is equivalent to an application duly made in any one of those convention countries; or
(b)
In accordance with the law of any convention country, is equivalent to an application duly made in that convention country,—

he shall be deemed for the purposes of this section to have applied in that convention country.

(5) For the purposes of this section, where more than one application for protection in a convention country has been made, the first application may be disregarded and the second application shall be substituted for the first application where—

(a)
The first application was made in or in respect of the same convention country and by the same applicant as the second application; and
(b)
Not later than the date of filing of the second application, the first application was unconditionally withdrawn, abandoned, or refused; and
(c)
Thefirstapplicationhadnotbeenmadeavailabletothe publicinNewZealandorelsewherebeforeitsunconditional withdrawal, abandonment, or refusal; and
(d)
No rights remain outstanding in respect of the first application; and

Reprinted as at20 April 2010 Designs Act 1953 Part 20 s 22

(e) Thefirstapplicationhasnotservedasabasisforclaiming a right of priority in relation to another application in any country.

Compare: Registered Designs Act 1949, s 14 (UK); 1939 No 26 s 55

Subsection (5) was inserted, as from 2 September 1996, by section 3 Designs Amendment Act 1996 (1996 No 118).

22 Extension of time for applications under section 21 in certain cases

(1)
If the Governor-General is satisfied that provision substantially equivalent to the provision to be made by or under this sectionhasbeenorwillbemadeunderthelawofanyconvention country, he may, by Order in Council, make regulations empoweringthe Commissionertoextendthe timeformaking application under subsection (1) of section 21 of this Act for registrationofadesigninrespectofwhichprotectionhasbeen applied for in that country in any case where the period specifiedintheprovisotothatsubsectionexpiresduringaperiod prescribed by the regulations.
(2)
Regulations made under this section—
(a)
May, where any agreement or arrangement has been made between Her Majesty’s Government in New ZealandandtheGovernmentoftheconventioncountry for the supply or mutual exchange of information or articles, provide, either generally or in any class of case specified in the regulations, that an extension of time shall not be granted under this section unless the design has been communicated in accordance with the agreement or arrangement:
(b)
May,eithergenerallyorinanyclassofcasespecifiedin the regulations, fix the maximum extension which may be granted under this section:
(c)
May prescribe or allow any special procedure in connectionwithapplicationsmadebyvirtueofthissection:
(d)
May empower the Commissioner to extend, in relation toanapplicationmadebyvirtueofthissection,thetime limitedbyorundertheforegoingprovisionsofthisAct for doing any act, subject to such conditions, if any, as may be imposed by or under the regulations:

Reprinted as atPart 20 s 23 Designs Act 1953 20 April 2010

(e) May provide for securing that the rights conferred by registration on an application made by virtue of this section shall be subject to such restrictions or conditions as may be specified by or under the regulations and in particular to restrictions and conditions for the protection of persons (including persons acting on behalf of Her Majesty) who, otherwise than as the result of a communication made in accordance with such an agreementorarrangementasismentionedinparagraph

(a) of this subsection, and before the date of the application in question or such later date as may be allowed bythe regulations,mayhave importedormade articles towhichthedesignisappliedormayhavemadeanapplication for registration of the design.

Compare: Registered Designs Act 1949, s 15 (UK); 1943 No 6 s 5

23 Protection of designs communicated under arrangements with other countries

(1) Subject to the provisions of this section, regulations may be made under this Act for securing that, where a design has been communicated in accordance with an agreement or arrangement made between Her Majesty’s Government in New ZealandandtheGovernmentofanyothercountryforthesupply or mutual exchange of information or articles,—

(a)
Anapplicationfortheregistrationofthedesignmadeby the person from whom the design was communicated, or his personal representative or assignee, shall not be prejudiced, and the registration of the design in pursuance of such an application shall not be invalidated, by reason only that the design has been communicated as aforesaid or that in consequence thereof—
(i)
The design has been published or applied; or
(ii)
An application for registration of the design has beenmadebyanyotherperson,orthedesignhas been registered on such an application:
(b)
Any application for the registration of a design made in consequence of such a communication as aforesaid may be refused and any registration of a design made on such an application may be cancelled.

Reprinted as at20 April 2010 Designs Act 1953 Part 20 s 24

(2)
Regulations made under subsection (1) of this section may provide that the publication or application of a design, or the making of any application for registration thereof, shall, in such circumstances and subject to such conditions or exceptions as may beprescribed by the regulations, bepresumed to havebeeninconsequenceofsuchacommunicationasismentioned in that subsection.
(3)
The power to make regulations under this section, so far as it is exercisable for the benefit of persons from whom designshave beencommunicatedto HerMajesty’sGovernment inNewZealandbytheGovernmentofanyothercountry,shall only be exercised if and to the extent that the Governor-Generalissatisfiedthatsubstantiallyequivalentprovisionhasbeen orwillbemadeunderthelawofthatcountryforthebenefitof personsfromwhomdesignshavebeencommunicated byHer Majesty’s Government in New Zealand to the Government of that country.
(4)
References in subsection (3) of this section to the communi cationofadesigntoorbyHerMajesty’sGovernmentinNew ZealandortheGovernmentofanyothercountryshallbeconstruedasincludingreferencestothecommunicationofthedesignby or to any person authorised in that behalf by the Government in question. Compare: Registered Designs Act 1949, s 16 (UK); 1946 No 32 s 4

24 Regulations under section 22 or section 23 Any regulations made under section 22 or section 23 of this Act,andanyordermade,directiongiven,orotheractiontaken under the regulations by the Commissioner, may be made, given, or taken so as to have effect as respects things done or omitted to be done on or after such date, whether before

Reprinted as atPart 25 s 25 Designs Act 1953 20 April 2010

or after the coming into operation of the regulations or of this Act, as may be specified in the regulations. Compare: Registered Designs Act 1949, s 37(2) (UK); 1943 No 6 s 7

Register of designs, etc 25 Register of designs

(1)
There shall be kept at the Patent Office under the control of the Commissioner a register of designs, in which there shall beenteredthenamesandaddressesofproprietorsofregistered designs,noticesofassignmentsand of transmissions of registered designs, and such other matters as may be prescribed or as the Commissioner may think fit.
(2)
Subject to the provisions of this Act and to regulations made thereunder, the register of designs shall, at all convenient times, be open to inspection by the public; and certified copies sealed with the seal of the Patent Office of any entry in the register shall be given to any person requiring them on payment of the prescribed fee.
(3)
The register of designs shall be prima facie evidence of any mattersrequiredorauthorisedbythisActtobeenteredtherein.
(4)
No notice of any trust, whether expressed, implied, or constructive, shall be entered in the register of designs, and the Commissioner shall not be affected by any such notice. Compare: RegisteredDesignsAct1949,s17(UK);1921-22No18ss55,118,

119

26 Certificate of registration

(1)
The Commissioner shall grant a certificate of registration in the prescribed form to the registered proprietor of a design when the design is registered.
(2)
The Commissioner may, in a case where he is satisfied that the certificate of registration has been lost or destroyed, or in any other case in which he thinks it expedient, on application made to him in the prescribed manner and on payment of the prescribed fee, furnish a further certificate. Compare: Registered Designs Act 1949, s 18 (UK); 1921-22 No 18 s 54

Reprinted as at20 April 2010 Designs Act 1953 Part 25 s 27

27 Registration of assignments, etc

(1)
Where any person becomes entitled by assignment, transmission, or operation of a law to a registered design or to a share in a registered design, or becomes entitled as mortgagee, li-censee,orotherwisetoanyotherinterestinaregistereddesign, he shall apply to the Commissioner in the prescribed manner for the registration of his title as proprietor or co-proprietor, or, as the case may be, of notice of his interest, in the register of designs.
(2)
Without prejudice to the provisions of subsection (1) of this section, an application for the registration of the title of any personbecomingentitledbyassignmenttoaregistereddesign orashareinaregistereddesign,orbecomingentitledbyvirtue ofamortgage,licence,orotherinstrumenttoanyotherinterest in a registered design, may be made in the prescribed manner by the assignor, mortgagor, licensor, or other party to that instrument, as the case may be.
(3)
Where application is made under this section for the registration of the title of any person, the Commissioner shall, upon proof of title to his satisfaction,—
(a)
Wherethatpersonisentitledtoaregistereddesignora share in a registered design, register him in the register of designs as proprietor or co-proprietor of the design, andenterinthatregisterparticularsoftheinstrumentor event by which he derives title; or
(b)
Wherethatpersonisentitledtoanyotherinterestinthe registered design, enter in that register notice of his interest, with particulars of the instrument (if any) creating it.
(4)
Subject to any rights vested in any other person of which notice is enteredin the registerofdesigns, theperson or persons registeredasproprietorofaregistereddesignshallhavepower to assign, grant licences under, 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 inrespectof the design may beenforcedinlikemannerasinrespectofanyotherpersonalproperty.

Reprinted as atPart 25 s 27A Designs Act 1953 20 April 2010

(5) Except for the purposes of an application to rectify the register under the following provisions of this Act, a document in respectofwhich no entryhasbeen madein the registerofdesignsundersubsection (3) ofthissectionshallnotbeadmitted in any Court as evidence of the title of any person to a registereddesignorshareoforinterestinaregistereddesignunless the Court otherwise directs. Compare: Registered Designs Act 1949, s 19 (UK); 1921-22 No 18 s 122

27A Application of Personal Property Securities Act 1999

Nothing in sections 25 to 27e affects the operation of the

Personal Property Securities Act 1999

Section 27A was inserted, as from 1 May 2002, by section 191(1) Personal Property Securities Act 1999 (1999 No 126). See also Part 12 of that Act for transitional provisions.

28 Rectification of register by the Court

(1)
The Court may, on the application of any person aggrieved, order the register of designs to be rectified by the making of any entry therein or the variation or deletion of any entry therein.
(2)
InproceedingsunderthissectiontheCourtmaydetermineany question which it may be necessary or expedient to decide in connection with the rectification of the register.
(3)
NoticeofanyapplicationtotheCourtunderthissectionshall be given in the prescribed manner to the Commissioner, who shallbeentitledtoappearandbeheardontheapplication,and shall appear if so directed by the Court.
(4)
AnyordermadebytheCourtunderthissectionshalldirectthat noticeoftheordershallbeservedontheCommissionerinthe prescribedmanner; andtheCommissioner shall, on receipt of the notice, rectify the register accordingly. Compare: Registered Designs Act 1949, s 20 (UK); 1921-22 No 18 s 123

29 Power of Commissioner to correct errors

(1) Where a mistake exists in the register of designs or in any documentissuedunderthisActbyreasonofanyerrororomission on the part of the Patent Office, the Commissioner may, in accordance with the provisions of this section, correct the

Reprinted as at20 April 2010 Designs Act 1953 Part 25 s 30

mistake, and for that purpose may require the production of the document.

(2)
Where the Commissioner proposes to make any such correctionasaforesaidheshallgivenoticeoftheproposaltothepersons who appear to him to be concerned, and shall give them an opportunity to be heard before making the correction.
(3)
Whereamistakeexistsintheregisterofdesigns,orinanyapplicationforregistrationofadesignorotherdocumentfiledin pursuanceofsuchanapplication,orinanyproceedingsinconnection with any design, by reason of an error or an omission on the part of the proprietor of the design or of the applicant forregistrationofthedesignorofanyotherpersonconcerned, a correction may be made in accordance with the provisions of this section upon a request in writing by any person interested and payment of the prescribed fee. If it appears to the Commissioner that the correction would materially alter the meaningorscopeofthedocumenttowhichtherequestrelates and ought not to be made without notice to persons likely to beaffectedthereby,heshallrequirenoticeofthenatureofthe proposedcorrectiontobeadvertisedintheprescribedmanner.
(4)
Within the prescribed time after any such advertisement as aforesaid, any person interested may give notice to the Commissionerofoppositiontotherequest,andwhereanysuchnoticeofoppositionisgiventheCommissionershallgivenotice thereoftothepersonbywhomtherequestwasmade,andshall givetohimandtotheopponentanopportunitytobeheardbefore he decides the case.
(5)
AnappealtotheCourtshallliefromanydecisionoftheCommissioner under this section. Compare: RegisteredDesignsAct1949,s21(UK);1921-22No18s121;1946

No 32 s 7

30 Inspection of registered designs

(1) Subject to the following provisions of this section and to any regulationsmadeinpursuanceofsubsection (2) ofsection9of thisAct,therepresentationorspecimenofadesignregistered under this Act shall be open to inspection at the Patent Office on and after the day on which the certificate of registration is issued.

Reprinted as atPart 25 s 31 Designs Act 1953 20 April 2010

(2)
Inthecaseofadesignregisteredinrespectofanarticleofany class prescribed for the purposes of this subsection, no representation or specimen of the design filed in pursuance of the application shall, until the expiration of such period after the dayonwhichthecertificateofregistrationisissuedasmaybe prescribedinrelationtoarticlesofthatclass,beopentoinspection at the Patent Office except by the registered proprietor, a person authorised in writing by the registered proprietor, or a person authorised by the Commissioner or by the Court: Provided that where the Commissioner proposes to refuse an application for the registration of any other design on the ground that it is the same as or differs only in immaterial details or in features which are variants commonly used in the trade, the applicant shall be entitled to inspect the representation or specimen of the first-mentioned design filed in pursuance of the application for registration of that design.
(3)
In the case of a design registered in respect of an article of any class prescribed for the purposes of subsection (2) of this section,therepresentationorspecimenofthedesignshallnot, duringtheperiodprescribedasaforesaid,beinspectedbyany person by virtue of this section except in the presence of the Commissioner or of a member of his staff acting under him; and,exceptinthecaseofaninspectionauthorisedbytheprovisotothatsubsection,thepersonmakingtheinspectionshall notbeentitledtotakeacopyoftherepresentationorspecimen of the design or any part thereof.
(4)
Whereanapplicationfortheregistrationofadesignhasbeen abandoned or refused, neither the application for registration nor any representation or specimen of the design filed in pursuance thereof shall at any time be open to inspection at the Patent Office or be published by the Commissioner. Compare: RegisteredDesigns Act1949, s 22(UK);1921-22 No 18 ss59, 120

31 Information as to existence of copyright On the request of any person furnishing such information as may enable the Commissioner to identify the design, and on paymentoftheprescribedfee,theCommissionershallinform him whether the design is registered, and, if so, in respect of whatarticles,andwhetheranyextensionoftheperiodofcopy

Reprinted as at20 April 2010 Designs Act 1953 Part 33 s 33

right has been granted, and shall state the date of registration and the name and address of the registered proprietor. Compare: Registered Designs Act 1949, s 23 (UK); 1921-22 No 18 s 60

32 Evidence of entries, documents, etc

(1)
AcertificatepurportingtobesignedbytheCommissionerand certifying that any entry which he is authorised by or under this Act to make has or has not been made, or that any other thingwhichheissoauthorisedtodohasorhasnotbeendone, shall be prima facie evidence of the matters so certified.
(2)
A copy of any entry in the register of designs or of any representation, specimen, or document kept in the Patent Office or anextract fromthe register orany such document, purporting to be certified by the Commissioner and to be sealed with the sealofthePatentOffice,shallbeadmittedinevidencewithout further proof and without production of the original. Compare: RegisteredDesignsAct1949,s24(UK);1921-22No18ss130,131

Legal proceedings and appeals 33 Certificate of contested validity of registration

(1)
IfinanyproceedingsbeforetheCourtthevalidityoftheregistrationofadesigniscontested,anditisfoundbytheCourtthat the design is validly registered, the Court may certify that the validityoftheregistrationofthedesignwascontestedinthose proceedings.
(2)
Where any such certificate has been granted, then, if in any subsequent proceedings before the Court for infringement of thecopyrightintheregistereddesignorforcancellationofthe registration of the design a final order or judgment is made or given in favour of the registered proprietor, he shall, unless theCourtotherwisedirects,beentitledtohiscostsasbetween solicitor and client: Providedthatthissubsectionshallnotapplytothecostsofany appeal in any such proceedings as aforesaid. Compare: Registered Designs Act 1949, s 25 (UK); 1921-22 No 18 s 40

Reprinted as atPart 33 s 34 Designs Act 1953 20 April 2010

34 Remedy for groundless threats of infringement proceedings

(1)
Whereanyperson(whetherentitledtoorinterestedinaregistered design or an application for registration of a design or not) by circulars, advertisements, or otherwise threatens any other person with proceedings for infringement of the copyrightinaregistereddesign,anypersonaggrievedtherebymay bringanactionagainsthimforanysuchreliefasismentioned in subsection (2) of this section.
(2)
Unlessinanyactionbroughtbyvirtueofthissectionthedefendantprovesthattheactsinrespectofwhichproceedingswere threatenedconstituteor,ifdone,wouldconstituteaninfringementofthecopyrightinaregistereddesigntheregistrationof which is not shown by the plaintiff to be invalid, the plaintiff shall be entitled to the following relief, that is to say:
(a)
A declaration to the effect that the threats are unjustifiable; and
(b)
Aninjunctionagainstthecontinuanceofthethreats;and
(c)
Such damages, if any, as he has sustained thereby.
(3)
For the avoidance of doubt it is hereby declared that a mere notification that a design is registered does not constitute a threat of proceedings within the meaning of this section. Compare: Registered Designs Act 1949, s 26 (UK); 1921-22, No 65

35 Appeal to High Court

(1)
EveryappealunderthisActagainstadecisionoftheCommissioner shall be to the High Court.
(2)
Notice of every such appeal shall be filed in the Court and served upon the Commissioner within 28 days after the day on which the decision appealed against was given.
(3)
In any such appeal the Court shall have and may exercise the samediscretionarypowersasareconferredupontheCommissioner.
(4)
Except with the leave of the High Court or of the Court of Appeal,noappealshallliefromanydecisionoftheHighCourt on an appeal against a decision of the Commissioner. Compare: 1921-22 No 18 s 140

Reprinted as at20 April 2010 Designs Act 1953 Part 36 s 37A

The words “High Court”were substituted for the words “Supreme Court”, as from 1 April 1980, pursuant to section 12 Judicature Amendment Act 1979 (1979 No 124).

Powers and duties of Commissioner
36 Exercise of discretionary powers of Commissioner Without prejudice to any provisions of this Act requiring the Commissioner to hear any party to proceedings thereunder, or to give to any such party an opportunity to be heard, the Commissioner shall give to any applicant for registration of a design an opportunity to be heard before exercising adversely to the applicant any discretion vested in the Commissioner by or under this Act.
Compare: Registered Designs Act 1949, s 29 (UK); 1921-22 No 18 s 124
37 (1) Commissioner may grant extension of time Where by this Act anything is required to be done within a prescribed time, and by reason of delay in the Patent Office the thing is not so done, the Commissioner may extend the time for the doing of the thing.
(2) No fees shall be payable in respect of any extension of time granted under this section.
(3) The powers conferred on the Commissioner by this section may be exercised notwithstanding that in any case the time limited may have expired. Compare: 1921-22 No 18 s 125

37A Additional provisions for extending time limits

(1)
TheCommissionermayextendthetimeprescribedinsubsection (1) ofsection21ofthisActforthefilingofanapplication underthatsectiononsuchterms(ifany)ashethinksfitwhere he is satisfied that the circumstances warrant the extension.
(2)
Notwithstanding subsection (1) of this section, the Commis sionershallrefusetograntanextensionoftimeunderthatsubsection if in his opinion—

(a) Theapplicantorhisagenthasnotallowedareasonable margin of time for the delivery to the Patent Office, by postorotherwise,ofanydocumentsrelatingtothemat

Reprinted as atPart 36 s 37A Designs Act 1953 20 April 2010

terinrespectofwhichtheapplicationfortheextension of time is made; or

(b)
Theapplicantorhisagenthasinanyotherwayfailedto act with due diligence and prudence in respect of such matter; or
(c)
There has been undue delay in bringing the application for the extension of time or in prosecuting the application.
(3)
Every extension of time granted under this section shall be advertised in the Journal in the prescribed manner.
(4)
Where an application is made for an extension of time under this section by an agent on behalf of any applicant, the Commissioner may as a condition of granting the application require that written confirmation that the application is authorised shall be signed or executed by the applicant and lodged withtheCommissionerwithinsuchtimeastheCommissioner specifies.
(5)
Anyextensionoftimeunderthissection,andanyrequirement given or other action taken by the Commissioner under this section,maybegranted,given,ortakensoastohaveeffectin respect of things done or omitted to be done before the commencement of this section, as long as the application for the extensionoftimehasbeenmadebeforeregistrationofthedesigninrespect of which the application under this section has been made.
(6)
The Governor-General may, from time to time, by Order in Council, make regulations for all or any of the following purposes:
(a)
For the protection of persons who at any time in good faith have begun to avail themselves of any design that isthesubject-matterofamatterinrespectofwhichany application under this section is made:
(b)
Prescribing the evidence that the Commissioner may accept in support of applications under this section:
(c)
PrescribingthemannerofadvertisingintheJournalextensions of time granted under this section:
(d)
Prescribing the grounds of opposition to applications under this section:

Reprinted as at20 April 2010 Designs Act 1953 Part 36 s 39

(e)
Regulating the procedure to be followed in relation to applications under this section and opposition to such applications:
(f)
Prescribingthefeestobepaidinrespectofapplications under this section.

Section 37A was inserted, as from 20 October 1972, by section 3 Designs Amendment Act 1972 (1972 No 53).

38 Costs and security for costs

(1)
TheCommissionermay,inanyproceedingsbeforehimunder thisAct,byorderawardtoanypartysuchcostsashemayconsider reasonable, and direct how and by what parties they are to be paid; and any such order may be entered as a judgment oftheCourtand,withtheleaveoftheCourt,maybeenforced accordingly.
(2)
IfanypartybywhomapplicationismadetotheCommissioner for the cancellation of the registration of a design or for the grantofalicenceinrespectofaregistereddesign,orbywhom notice of appeal is given from any decision of the Commissioner under this Act, neither resides nor carries on business in New Zealand, the Commissioner, or, in the case of appeal, theCourt,mayrequirehimtogivesecurityforthecostsofthe proceedings or appeal, and in default of such security being given may treat the application or appeal as abandoned. Compare: RegisteredDesigns Act1949, s 30(UK);1921-22 No 18 ss45, 127

39 Evidence before Commissioner

(1) Subject to regulations made under this Act, the evidence to be given in any proceedings before the Commissioner under thisActmaybegivenbyaffidavitorstatutorydeclaration;but the Commissioner may if he thinks fit in any particular case take oral evidence instead of or in addition to such evidence asaforesaid,andmayallowanywitnesstobecross-examined on his affidavit or declaration. Any such statutory declaration may, in the event of an appeal under this Act, be used before the Court instead of evidence by affidavit, and where so used shall have all the incidents and consequences of evidence by affidavit.

Reprinted as atPart 36 s 40 Designs Act 1953 20 April 2010

(2)
Subject to any such regulations as aforesaid, the Commissioner shall in respect of requiring the attendance and the examination of witnesses on oath and the discovery and production of documents have the same powers as the Com missionerofPatents hasinproceedings under thePatentsAct 1953 .
(3)
AnyevidencegivenonoathbeforetheCommissionershallbe deemed to be given in a judicial proceeding for the purposes of sections 108 and 109 of the Crimes Act 1961.

(4) Sectio n 111 of the Crimes Act 1961 shall apply to every affi davit and statutory declaration made for the purposes of this Act. Compare: Registered Designs Act 1949, s 31 (UK); 1921-22 No 18 s 129 Subsection(3)wasamended,asfrom1January1962,bysection 412(2) Crimes Act 1961 (1961 No 43), by substituting the expression “108 and 109 of the CrimesAct1961”fortheexpression “onehundredandthirtyandonehundred and thirty one of the Crimes Act 1908”.

Subsection(4)wasamended,asfrom1January1962,bysection 412(2) Crimes Act 1961 (1961 No 43), by substituting the expression “111 of the Crimes Act 1961”for the expression “one hundred and thirty three of the Crimes Act 1908”.

40 Recognition of agents Where by this Act any act has to be done by or to any person in connection with a registered design or proposed registered designoranyproceedingsrelatingthereto,theactmay,unless otherwiseprescribed, bedonebyorto anagentofthat person duly authorised in the prescribed manner. Compare: 1921-22 No 18 s 136

41 Commissioner may dispense with production of probate or letters of administration in certain cases

(1) For the purposes of this section, unless the context otherwise

requires,— Deceasedproprietormeansaregisteredproprietorofanydesignwhohasdied,whetherbeforeorafterthecommencement ofthisAct;andincludesanyapplicantfortheregistrationofa design who has died before it is registered, whether before or after the commencement of this Act

Reprinted as at20 April 2010 Designs Act 1953 Part 36 s 41

Qualified person, in relation to any deceased proprietor, means a person who satisfies the Commissioner—

(a)
That he has obtained or is entitled to obtain probate of the will of the deceased proprietor or letters of administration in his estate in the place where the deceased proprietor was domiciled at his death, or that he is the legal representative of the deceased proprietor in that place:
(b)
Thatprobateofthewillofthedeceasedproprietororlettersofadministrationinhisestatehavenotbeengranted or resealed in New Zealand:
(c)
(d)
Thattheinterestsofthecreditorsofthedeceasedproprietor,andofallpersonsbeneficiallyinterestedunderhis will or on his intestacy, will be adequately safeguarded if the Commissioner of Designs registers the qualified person as the proprietor of the design.

Qualifiedperson: thewords“estateduty”weresubstitutedforthewords“death duty”, as from 21 July 1955, pursuant to section 89(7) Estate and Gift Duties Act1955(1955No105);butthesubstitutedwordsapplyonlyinrelationtothe estates of persons dying after the commencement of that Act.

Qualified person: paragraph(c) of this definition wasomitted,as from 24May 1999, by section 17 Estate Duty Repeal Act 1999 (1999 No 64).

(2)
Uponapplicationintheprescribedmannerandpaymentofthe prescribed fees, the Commissioner of Designs, in his discretionand withoutrequiring the productionofprobate or letters of administration, may,—
(a)
Wheretheregisteredproprietorofanydesignhasdied, whether before or after the commencement of this Act, registeranyqualifiedpersonastheproprietorofthedesign:
(b)
Where an applicant for the registration of a design has died before the registration of the design, whether before or after the commencement of this Act, allow any qualified person to complete the application and may register that person as the proprietor of the design.
(3)
Every qualified person who is registered under this section as the proprietor of a design shall hold it subject to all existing interests and equities affecting it.

Reprinted as atPart 42 s 42 Designs Act 1953 20 April 2010

(4) Nothing in sections 70 or 73 of the Administration Act 1969 shall be deemed to restrict the operation of this section. Compare: 1947 No 37 s 5 Subsection(4)wasamended,asfrom1January1971,bysection 84(1) AdministrationAct1969(1969No52)bysubstitutingtheexpression “70or73ofthe AdministrationAct1969”fortheexpression “49and52oftheAdministration Act 1952”.

Offences 42 Offences in respect of designs required to be kept secret

(1)
Every person who fails to comply with any direction given undersection 9 ofthisAct,orwhomakesorcausestobemade anapplicationfortheregistrationofadesignincontravention ofthatsection,commitsanoffenceandshallbeliableonconviction on indictment to imprisonment for a term not exceeding 2 years or to a fine not exceeding $1,000, or to both such imprisonment and such fine.
(2)
Whereanoffenceagainstsection 9 ofthisActiscommittedby abodycorporate,everypersonwhoatthetimeofthecommissionoftheoffenceisadirector,generalmanager,secretary,or other similar officer of the body corporate, or is purporting to act in any such capacity, shall be deemed to have committed that offence unless he proves that the offence was committed by the body corporate without his consent or connivance and thatheexercisedallsuchdiligencetopreventthecommission oftheoffencebythebodycorporateasheoughttohaveexercised having regard to the nature of his functions in that capacity and to all the circumstances.
(3)
Compare: Registered Designs Act 1949, s 33 (UK)

Subsection(3)wasrepealedbysection 214(1) SummaryProceedingsAct1957.

43 Falsification of register, etc

(1) Every person who makes or causes to be made a false entry inthe register ofdesigns, or a writing falsely purporting to be a copy of an entry in that register, or produces or tenders or causes to be produced or tendered in evidence any such writing, knowing the entry or writing to be false, commits an of

Reprinted as at20 April 2010 Designs Act 1953 Part 45 s 45

fence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 2 years.

(2) Compare: Registered Designs Act 1949, s 34 (UK);1921-22 No18 s 143(1)

Subsection(2)wasrepealedbysection 214(1) SummaryProceedingsAct1957.

44 Fine for falsely representing a design as registered

(1)
Every person who falsely represents that a design applied to any article sold by him is registered in New Zealand in respect of that article commits an offence and shall be liable on summary conviction to a fine not exceeding $40; and for the purposesofthisprovisionapersonwhosellsanarticlehaving stamped,engraved,orimpressedthereonorotherwiseapplied thereto the words “registered in New Zealand” or any other words expressing or implying that the design applied to the article isregistered in New Zealand shall bedeemed torepresentthatthedesignappliedtothearticleisregisteredinrespect of that article.
(2)
Every person who, after the copyright in a registered design has expired, marks any article to which the design has been applied with the words “registered in New Zealand” or any word or words implying that there is subsisting copyright in the design in New Zealand or causes any such article to be so marked commits an offence and shall be liable on summary conviction to a fine not exceeding $40. Compare: Registered Designs Act 1949, s 35 (UK); 1921-22 No 18 s 143(3),

(4)

Supplemental 45 Hours of business

(1)
TheCommissioner,fromtimetotimebynoticeintheJournal, mayfixthehoursduringwhichthePatentOfficeshallbeopen for the transaction of public business under this Act, and may declare the Patent Office closed for the transaction of public business on any day.
(2)
WherethetimeprescribedfordoinganyactortakinganyproceedingexpiresonadayonwhichthePatentOfficeisnotopen andbyreasonthereoftheactorproceedingcannotbedoneor

39 Reprinted as atPart 45 s 45A Designs Act 1953 20 April 2010

taken on that day,the act or proceeding shall be deemedtobe in time if done or taken on the next day on which the Patent Office is open. Compare: Registered Designs Act 1949, s 39 (UK); 1921-22 No 18 s 133

Subsection (1) was substituted, as from 10 December 1976, by section 2(1) Designs Amendment Act 1976 (1976 No 86).

Subsection (2) was amended, as from 10 December 1976, by section 2(2) DesignsAmendmentAct1976(1976No86)byomittingthewords“asaforesaid” in 2 places.

45A Closing of Patent Office at short notice

(1)
Notwithstanding subsection (1) of section 45 of this Act, where, because of an emergency or other temporary circumstances, the Commissioner is satisfied that it is or will be necessary or desirable to close the Patent Office on any day and it is not practicable to give notice of the closure in the Journal as required by that subsection, the Commissioner may, without giving that notice, declare the Patent Office closed for the transaction of public business on that day in accordance with the provisions of this section.
(2)
In every case where the Commissioner proposes to declare or has declared the Patent Office closed under subsection (1) of this section he shall, if practicable, display a public notice of that fact in or on the building in which the Patent Office is situated.
(3)
AssoonaspracticablethereaftertheCommissionershallalso cause a copy of the public notice, or (if no such notice was displayed) a notice of the exercise of his powers under this section, to be published in the Journal. Section 45A was inserted, as from 10 December 1976, by section 3 Designs

Amendment Act 1976 (1976 No 86).

46 Regulations

(1)
Subject to the provisions of this Act, the Governor-General may from time to time, by Order in Council, make all such regulations as may in his opinion be necessary or expedient for giving effect to the provisions of this Act and for the due administration thereof.
(2)
Without limiting the general power conferred by subsection

(1) of this section, it is hereby declared that regulations may

Reprinted as at20 April 2010 Designs Act 1953 Part 45 s 46

bemade underthissectionforalloranyofthefollowingpurposes:

(a)
For regulating the business of the Patent Office in relation to designs:
(b)
For regulating all matters by this Act placed under the direction or control of the Commissioner:
(c)
Forprescribingtheformofapplicationsforregistration of designs and of any representations or specimens of designs or other documents which may be filed at the Patent Office, and for requiring copies to be furnished of any such representations,specimens, ordocuments:

(ca) for prescribing the manner in which applications may be made under section 12(2):

(cb) for regulating the procedure to be followed in connection witha request to the Commissionerunder sections 41A to 41F (including providing for when and how requestsmustbemade,theperiodforgivingnoticeofopposition, penalties payable under section 41F, and the matters referred to in section 41F(2)(b)):

(cc)
for regulating the procedure to be followed in connection witha request to the Commissionerunder sections 41G to 41J (including providing for when and how requestsmustbemade,theperiodforgivingnoticeofopposition, and the matters referred to in section 41J(2)):
(d)
For regulating the procedure to be followed in connection with any application or request to the Commissioner or in connection with any proceeding before the Commissionerandforauthorisingtherectificationofirregularities of procedure:
(e)
For regulating the keeping of the register of designs:
(f)
For authorising the publication and sale of copies of representations of designs and other documents in the Patent Office:
(g)
For prescribing classes of persons whom the Commissioner may refuse to recognise as agents in respect of proceedings under this Act:
(h)
For prescribing matters to be published in the Patent Office Journal:

Reprinted as atPart 45 s 47 Designs Act 1953 20 April 2010

(i) For prescribing anything authorised or required by this Act to be prescribed by regulations.

(3) [Repealed] Compare: Registered Designs Act 1949, s 36 (UK); 1921-22 No 18 s 138 Section 46(2)(ca): inserted, on 20 April 2010, by section 7 of the Designs Amendment Act 2010 (2010 No 15).

Section 46(2)(cb): inserted, on 20 April 2010, by section 7 of the Designs Amendment Act 2010 (2010 No 15).

Section 46(2)(cc): inserted, on 20 April 2010, by section 7 of the Designs Amendment Act 2010 (2010 No 15).

Subsection (3) was repealed, as from 19 December 1989, by section 11 Regu lations (Disallowance) Act 1989 (1989 No 143).

47 Fees

(1) Thereshallbepaidinrespectoftheregistrationofdesignsand applications therefor, and in respect of other matters relating to designs arising under this Act, such fees as may from time totime beprescribedbyregulationsmade under thisAct,and allsuchfeesshallbepaidintoaDepartmentalBankAccount.

(2) Any sum paid to the Commissioner by mistake, or any sum the payment of which is not required by the regulations made underthisAct,mayberefundedbytheCommissioner,andall money so refunded shall be paid out ofpublic money without further appropriation than this Act. Compare: Registered Designs Act 1949, s 40 (UK); 1921-22 No 18 s 117 Insubsection(1)thewords“ConsolidatedRevenueAccount”weresubstituted for the words “Consolidated Fund”as from 1 April 1964, pursuant to section 4(4) Public Revenues Amendment Act 1963 (1963 No 46). These words were inturnsubstitutedbythewords“ConsolidatedAccount”,asfrom1April1978, pursuant to section 114(6) Public Finance Act 1977 (1977 No 65), and by the words “a Departmental Bank Account” by section 86(1) Public Finance Act 1989 (1989 No 44).

Insubsection(2)thewords“ConsolidatedRevenueAccount”weresubstituted for the words “Consolidated Fund”as from 1 April 1964, pursuant to section 4(4) Public Revenues Amendment Act 1963 (1963 No 46). These words were inturnsubstitutedbythewords“ConsolidatedAccount”,asfrom1April1978, pursuant to section 114(6) Public Finance Act 1977 (1977 No 65), and by the words“publicmoney”bysection 86(1) PublicFinanceAct1989(1989No44).

48 Service of notices, etc, by post

(1) Anynoticerequiredorauthorisedtobegivenbyorunderthis Act, and any application or other document so authorised or

Reprinted as at20 April 2010 Designs Act 1953 Part 45 s 52

required to be made or filed, may be given, made, or filed by sendingitbypostinaletteraddressedtothepersonconcerned at his usual or last known address.

(2) Where any notice is sent by the Commissioner to any person by post as aforesaid, the notice shall be deemed to have been givenatthetimewhenthelettercontainingitwouldhavebeen delivered in the ordinary course of post. Compare: Registered Designs Act 1949, s 41 (UK); 1921-22 No 18 s 132

49 Annual report

The Commissioner of Patents shall, in his annual report with respect to the operation of the Patents Act 1953, include a re port with respect to the operation of this Act as if it formed part of or was included in that Act. Compare: Registered Designs Act 1949, s 42 (UK); 1921-22 No 18 s 128

50 Application of Act to Tokelau

This Act shall be in force in Tokelau.

Theword “Tokelau”wassubstitutedforthewords “TokelauIslands”,asfrom 9December1976,pursuanttosection 3(8) TokelauAmendmentAct1976(1976 No 122).

51 Saving

NothinginthisActshallbeconstruedasauthorisingorrequiring the Commissioner to register a design the use of which would, in his opinion, be contrary to law or morality. Compare: Registered Designs Act 1949, s 43(1) (UK); 1939 No 26 s 71

52 Repeals and savings

(1)
TheenactmentsspecifiedintheScheduletothisActarehereby repealed.
(2)
Without limiting the provisions of the Acts Interpretation Act 1924, it is hereby declared that the repeal of any provision by this Act shall not affect any document made or any thing whatsoeverdoneundertheprovisionsorepealedorunderany corresponding former provision, and every such document or thing, so far as it is subsisting or in force at the time of the repealandcouldhavebeenmadeordoneunderthisAct,shall continue and have effect as if it had been made or done under

43 Reprinted as atSchedule Designs Act 1953 20 April 2010

thecorrespondingprovisionofthisActandasifthatprovision had been in force when the document was made or the thing was done.

(3)
Any design registered before the commencement of this Act shall be deemed to be registered under this Act in respect of articles of the class in which it is registered.
(4)
Where, in relation to any design, the time for giving notice to the Commissioner under section 63 of the Patents, Designs, and Trade Marks Act 1921-22 expired before the commence ment of this Act and the notice was not given, subsection (2) of section 10 of this Act shall not apply in relation to that design or any registration of that design.
(5)
AnydocumentreferringtoanyenactmentrepealedbythisAct shallbeconstruedasreferringtothecorrespondingenactment of this Act. Compare: Registered Designs Act 1949, s 48 (UK)

Schedule Section 52(1) Enactments repealed

  • 1921-22,No18—ThePatents,Designs,andTradeMarksAct 1921-22: Part2;andPart4initsapplicationtodesigns. (1931 Reprint, Vol VI, p 656)
  • 1939,No26—ThePatents,Designs,andTradeMarksAmendmentAct1939: Sections53,54,55,and71intheirapplication to designs; and section 69.
  • 1943,No6—ThePatents,Designs,andTradeMarksAmendmentAct1943: Sections5and7intheirapplicationtodesigns.
  • 1946,No32—ThePatents,Designs,andTradeMarksAmendmentAct1946: Sections4and7intheirapplicationtodesigns.
  • 1947,No37—ThePatents,Designs,andTradeMarksAmendment Act 1947: Section 5 in its application to designs.

Reprinted as at20 April 2010 Designs Act 1953 Notes

Contents

1 General

2 About this eprint

3 List of amendments incorporated in this eprint (most recent first)

Notes

1 General

This is an eprint of the Designs Act 1953. The eprint incorporates all the amendments to the Act as at 20 April 2010. The list of amendments at the end of these notes specifies all the amendments incorporated into this eprint since 3 September 2007.

Relevantprovisionsofany amending enactments thatcontain transitional, savings, or application provisions that cannot be compiled in the eprint are also included, after the principal enactment, in chronological order.

2 About this eprint

This eprint has not been officialised. For more information about eprints and officialisation, please see http://www.pco.parliament.govt.nz/eprints/ .

3 List of amendments incorporated in this eprint (most recent first)

Designs Amendment Act 2010 (2010 No 15)


Législation Remplace (1 texte(s)) Remplace (1 texte(s)) Est remplacé(e) par (5 texte(s)) Est remplacé(e) par (5 texte(s))
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