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Short title.
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1. This Ordinance may be cited as the Designs Ordinance.
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Definition of ” proprietor “.
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2. The author of any new and original design shall be considered the proprietor thereof, unless he executed the work on behalf of another person for a good or valuable consideration in which case such person shall be considered the proprietor, and every person acquiring for a good or valuable consideration a new and original design, or the right to apply the same to any such article or substance as aforesaid, either exclusively of any other person or otherwise, and also every person on whom the property in such design or right to the application thereof shall devolve, shall be considered the proprietor of the design in the respect in which the same may have been so acquired, and to that extent but not otherwise.
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The register of designs.
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3.
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(1) The Registrar shall keep at the Registrar’s office a book called ” The Register of Designs “, and shall enter therein the names and addresses of proprietors of registered designs and such other matters as may be from time to time prescribed.
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(2) The register of designs shall be prima facie evidence of any matters by this Ordinance directed or authorized to be entered therein.
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* See section 3 of the Patents, Designs and Trade Marks (Neuchatel Agreement) Act.
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Power to register new and original designs.
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4.
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(1) The Registrar may on application by or on behalf of any person claiming to be the proprietor of any new or original design not previously published in Ceylon, register the design under this Ordinance.
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(2) The application must be in the form in the Schedule or in such other form as may be prescribed, and must be left at the Registrar’s office in the prescribed manner. The application must be signed by the applicant, or if he is absent from Ceylon it may be signed by an agent resident in Ceylon duly authorized thereto on his behalf.
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(3) The application must contain a statement of the nature of the design and the class or classes of goods in which the applicant desires that the design be registered.
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(4) The date of delivery or receipt of the application shall be endorsed thereon and recorded in the Registrar’s office.
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(5) The same design may be registered in more than one class.
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(6) In case of doubt as to the class in which a design ought to be registered, the Registrar, after such inquiry as may appear necessary, may decide the question, or he may refer it for decision by the Minister.
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(7) 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 the prescribed time shall be deemed to be abandoned.
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(8) Where an application has been abandoned or refused, the application and any drawings, photographs, tracings, representations, or specimens left in connexion with the application shall not at any time be open to public inspection or be published by the Registrar.
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(9) A design when registered shall be registered as of the date of the application for registration.
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Power of Registrar register design.
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5.
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(1) Upon such application as aforesaid the Registrar may, after such inquiry as he thinks fit, and subject to the provisions hereinafter contained, make an order authorizing the registration of the design.
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(2) When an order has been made under this section the Registrar shall cause the design to be registered in the register of designs.
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(3) The date of registration shall be recorded in the said register.
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(4) The Registrar may, if he thinks fit, refuse to register any design presented to him for registration but any person aggrieved by any such refusal may appeal therefrom to the Minister.1
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(5) The Minister1 shall, after such inquiry as may appear necessary, make an order determining whether, and subject to what conditions if any, registration is to be permitted.
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Copies, &c, the design be furnished
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6.
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(1) On application for registration of a design the applicant shall furnish to the Registrar the prescribed number of copies, drawings, photographs, or tracings of the design sufficient in the opinion of the Registrar for enabling him to identify the design, and suitable for official records, or the applicant may, instead of copies, drawings, photographs, or tracings, furnish exact representations or specimens of the design.
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(2) The Registrar may, if he thinks fit, refuse any drawing, photograph, tracing, representation, or specimen which is not, in his opinion, suitable for official records, or he may require the applicant to furnish further copies of any drawing, photograph, tracing, representation, or specimen which has been supplied.
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Certificate of registration.
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7.
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(1) The Registrar shall grant a certificate of registration to the proprietor of the design when registered.
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(2) The Registrar may in case of loss of the original certificate or in any other case in which he deems it expedient, grant a copy or copies of the certificate.
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Copyright on registration.
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8.
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(1) When a design is registered, the registered proprietor of the design shall, subject to the provisions of this Ordinance, have copyright in the design during five years from the date of registration. If within the prescribed time before the expiration of the said five years application for the extension of the period of copyright is made to the Registrar in the prescribed manner, the Registrar shall, on payment of the prescribed fee, extend the period of copyright for a second period of five years from the expiration of the original period of five years. If within the prescribed time before the expiration of such second period of five years application for the extension of the period of copyright is made to the Registrar in the prescribed manner, the Registrar may, subject to any rules under this Ordinance, on payment of the prescribed fee, extend the period of copyright for a third period of five years from the expiration of the second period of five years.
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(2) Before delivery on sale of any articles to which a registered design has been applied, the proprietor must (if exact representations or specimens were not furnished on the application for registration) furnish to the Registrar the prescribed number of exact representations or specimens of the design ; and if he fails to do so, the Registrar may erase his name from the register, and thereupon his copyright in the design shall cease.
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Marking registered designs.
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9. Before delivery on sale of any articles to which a registered design has been applied, the proprietor of the design shall cause each such article to be marked with the prescribed mark, or with the prescribed word or words or figures, denoting that the design is registered, and if he fails to do so the copyright in the design shall cease, unless the proprietor shows that he took all proper steps to ensure the marking of the article.
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Inspection of registered designs.
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10.
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(1) During the existence of copyright in a design the design shall not be open to inspection except by the proprietor or a person authorized in writing by the proprietor, or a person authorized by the Registrar or by the court, and furnishing such information as may enable the Registrar to identify the design, nor except in the presence of the Registrar or of an officer acting under him, nor except on payment of the prescribed fee, and the person making the inspection shall not be entitled to take any copy of the design or of any part thereof : Provided that where registration of a design is refused on the ground of identity with a design already registered, the applicant for registration shall be entitled to inspect the design so registered.
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(2) When the copyright in a design has ceased the design shall be open to inspection, and copies thereof may be taken by any person on payment of the prescribed fee.
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Information as to existence of copyright.
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11. On the request of any person producing a particular design, together with its mark of registration, or producing only its mark of registration, or furnishing such information as may enable the Registrar to identify the design, and on payment of the prescribed fee, it shall be the duty of the Registrar to inform such person whether the registration still exists in respect of such design, and if so in respect of what class or classes of goods, and stating also the date of registration and the name and address of the registered proprietor.
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Cessation of copyright in certain events.
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12. If a registered design is used in manufacture in any foreign country and is not used in Ceylon within six months of its registration in Ceylon, the copyright in the design shall cease.
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Fees on registration, &c.
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13. There shall be paid in respect of application and registration and other matters under this Ordinance such fees as the Minister with the concurrence of the Minister of Finance [1] shall by rule prescribe, and such fees shall be levied and paid into the Treasury.
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Exhibition at industrial or international exhibition not to prevent or invalidate registration.
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14.
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(1) The exhibition at an industrial or International exhibition certified as such by the Registrar, or the exhibition elsewhere during the period of the holding of the exhibition, without the privity or consent of the proprietor, of a design, or of any article to which a design is applied, or the publication during the holding of any such exhibition of a description of a design, shall not prevent the design from being registered, or invalidate the registration thereof, provided that both the following conditions are complied with: –
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(a) The exhibitor must, before exhibiting the design, or article, or publishing a description of the design, give the Registrar the prescribed notice of his intention to do so ; and
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(b) The application for registration must be made before or within six months from the date of the opening of the exhibition.
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(2) The Minister [1] may by Order1 direct that this section shall apply to any exhibition outside Ceylon, and thereupon it shall apply to the exhibition mentioned in the Order1 as if it were an industrial or international exhibition certified by the Registrar.
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(3) The Minister1 may by Order relieve exhibitors from giving notice to the Registrar of their intention to exhibit either absolutely or on such conditions as he thinks fit, and thereupon exhibitors shall be relieved accordingly.
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Penalty on piracy of registered designs.
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15. During the existence of copyright in any design-
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(a) it shall not be lawful for any person without the licence or written consent of the registered proprietor to apply or cause to be applied such design or any fraudulent or obvious imitation thereof, in the class or classes of goods in which such design is registered, for the purposes of sale, to any article of manufacture or to any substance, artificial or natural, or partly artificial and partly natural; and
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(b) it shall not be lawful for any person to publish or expose for sale any article of manufacture or any substance to which such design or any fraudulent or obvious imitation thereof shall have been so applied, knowing that the same has been so applied without the consent of the registered proprietor. Any person who acts in contravention of this section shall be liable for every offence to forfeit a sum not exceeding seven hundred and fifty rupees to the registered proprietor of the design, who may recover such sum as a simple contract debt by action in any court of competent jurisdiction, provided that the total sum forfeited in respect of any one design shall not exceed one thousand five hundred rupees.
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Action for damages.
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16. Notwithstanding the remedy given by this Ordinance for the recovery of such penalty as aforesaid, the registered proprietor of any design may (if he elects to do so) bring an action for the recovery of any damages arising from the application of any such design or of any fraudulent or obvious imitation thereof for the purpose of sale to any article of manufacture or substance, or from the publication, sale, or exposure for sale by any person of any article or substance to which such design or any fraudulent or obvious imitation thereof shall have been so applied, such person knowing that the proprietor had not given his consent to such application.
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Trust not to be entered in register.
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17. There shall not be entered in the register of designs or be receivable by the Registrar any notice of any trust expressed, implied, or constructive.
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Refusal to register in certain cases.
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18. The Registrar may refuse to register a design of which the use would, in his opinion, be contrary to law or morality.
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Entry of assignments and transmissions in register.
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19. Where a person becomes entitled by assignment, transmission, or other operation of law to a registered design, the Registrar shall, on request and on proof of title to his satisfaction, cause the name of such person to be entered as proprietor of the design in the register of designs. The person for the time being entered in the register of designs as proprietor of a design shall, subject to the provisions of this Ordinance and to any rights appearing from such register to be vested in any other person, have power absolutely to assign, grant licences as to, or otherwise deal with the same, and to give effectual receipts for any consideration for such assignment, licence, or dealing : Provided that any equities in respect of such design may be enforced in like manner as in respect of any other movable property.
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Inspection of and extracts from register.
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20. The register of designs shall at all convenient times be open to the inspection of the public, subject to the provisions of this Ordinance and to such regulations as may be prescribed, and certified copies under the hand of the Registrar of any entry in any such register shall be given to any person requiring the same on payment of the prescribed fee.
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Certified copies to be received in evidence.
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21. Printed or written copies or extracts purporting to be certified by the Registrar of or from any document, register, or other book filed or kept under this Ordinance in the said office shall be admitted in evidence in all courts in Ceylon and in all proceedings without further proof or production of the originals.
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Rectification of register by court.
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22.
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(1) The court may, on the application of any person aggrieved by the omission without sufficient cause of the name of any person or of any other particulars from the register of designs, or by any entry made without sufficient cause in such register, make such order for making, expunging, or varying the entry as the court thinks fit, or the court may refuse the application; and in either case may make such order with respect to the costs of the proceedings as the court thinks fit.
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(2) The court may in any proceeding under this section decide any question which it may be necessary or expedient to decide for the rectification of the register of designs, and may direct an issue to be tried for the decision of any question of fact, and may award damages to the party aggrieved.
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(3) Any order of the court rectifying the register of designs shall direct that due notice of the rectification be given to the Registrar.
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Power to correct clerical errors.
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23. The Registrar may, on request in writing accompanied by the prescribed fee-
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(a) correct any clerical error in or in connexion with an application for the registration of a design ; or
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(b) correct any clerical error in the name, style, or address of the registered proprietor of a design; or
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(c) cancel the entry or part of the entry of a design on the register of designs, provided that the applicant accompanies his request by an affidavit made by himself, stating his name, address, and calling, and that he is the person whose name appears on the register of designs as the proprietor of the said design;
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(d) permit an applicant for registration of a design to amend his application by omitting any particular goods or classes of goods in connexion with which he has desired the design to be registered.
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Stamp duties.
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24. The minimum stamp duties chargeable in the District Court in civil proceedings under the provisions of the enactment for the time being in force relating to stamps shall, so far as the same may be applicable, and except as herein otherwise provided, be charged in all proceedings in the court under this Ordinance. But in no case shall the Registrar be required to use any stamp or be charged with any stamp duty.
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Appeal.
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25. Every judgment or order by the District Court under this Ordinance shall be subject to an appeal to the Supreme Court, and such appeal shall be subject to the same rules which govern interlocutory appeals from District Courts; and the minimum stamp duties chargeable in the Supreme Court under the provisions of the enactment for the time being in force relating to stamps shall, so far as the same may be applicable, be charged in all proceedings relating to or in connexion with such appeal.
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Certificate of Registrar to be evidence.
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26. A certificate purporting to be under the hand of the Registrar as to any entry, matter, or thing, which he is authorized by this Ordinance, or any general 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.
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Applications and notices by post.
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27.
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(1) Any application, notice, or other document authorized or required to be left with or sent to the Registrar or to any other person under this Ordinance may be sent by a registered letter through the post; and if so sent shall be deemed to have been so left or given respectively at the time when the letter containing the same would be delivered in the ordinary course of post.
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(2) In proving such service or sending, it shall be sufficient to prove that the letter was properly addressed and registered at the post office.
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Case of infant, person of unsound mind, &c.
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28. If any person is, by reason of infancy, unsoundness of mind, or other inability, incapable of making any affidavit or doing anything required or permitted by this Ordinance or by any rules made under the authority of this Ordinance, then the guardian of such incapable person, or if there be none any person appointed by any court possessing jurisdiction in respect of the property of incapable persons, upon the petition of any person on behalf of such incapable person, or of any other person interested in the making of such affidavit or doing such thing, may make such affidavit or an affidavit as nearly corresponding thereto as circumstances permit, and do such thing in the name and on behalf of such incapable person ; and all acts done by such substitute shall, for the purposes of this Ordinance, be as effectual as if done by the person for whom he is substituted.
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Offences.
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29.
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(1) Any person who describes any design applied to any article sold by him as registered which is not so shall be guilty of an offence, and shall be liable on conviction thereof to a fine not exceeding one hundred rupees.
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(2) A person shall be deemed for the purposes of this Ordinance to represent that a design is registered if he sells the article with the word ” registered “, or any word or words expressing or implying that registration has been obtained for the article stamped, engraved, or impressed on, or otherwise applied to the article.
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Protection of British and foreign designs. (7 Edw. vii, c. 29.) (7 Edw. vii, c. 29.)
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30.
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(1) Any person who has applied for registration of any design in the United Kingdom, or in any foreign state with the Government of which Her Majesty has made an arrangement under, or which has force as if it has been made under, section 91 of the Patents and Designs Act, 1907, for the mutual protection of designs, shall be entitled to registration of his design, under this Ordinance, in priority to other applicants ; and such registration shall take effect from the same date as the date of the application in the United Kingdom, or such foreign state, as the case may be.
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(2) Such application shall be made within six months from such person applying for protection in the United Kingdom or in the foreign state with which the arrangement is in force.
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(3) Nothing in this section contained shall entitle the proprietor of the design to recover damages for infringements happening prior to the actual registration of his design in Ceylon.
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(4) Notwithstanding the provisions of section 4 of this Ordinance, the exhibition or use of the design in Ceylon or the publication therein of a description or representation thereof during the period of six months prescribed in subsection (2) of this section shall not invalidate the registration of the design.
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(5) The application for the registration of a design under this section shall be made and dealt with in the same manner as an application under this Ordinance.
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(6) The provisions of this section shall, in the case of foreign states, apply only in the case of those foreign states with respect to which Her Majesty, by Order in Council, shall have declared that the provisions of section 91 of the Patents and Designs Act, 1907, or the corresponding provisions of any enactment repealed by such Act, are to be applicable, and so long only, in the case of each state, as such Order in Council continues in force with respect to that state.
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Provision for arrangements with British possessions.
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31.
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(1) Whenever it appears to the Governor-General [3]that the Legislature of any British possession has made satisfactory provision for the protection in such possession of designs registered in Ceylon, the Governor-General3 may by Proclamation apply all or any of the provisions of section 30 relating to the protection of designs registered in the United Kingdom with such variations or additions, if any, as to the Governor-General [3] seems fit, to designs registered in such British possession.
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(2) A Proclamation under this section shall, from a date to be mentioned in the Proclamation, take effect as if its provisions had been contained in this Ordinance ; but it shall be lawful for the Governor-General3 to revoke any such Proclamation.
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Minister may make rules, & c, under this Ordinance.
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32.
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(1) The Minister [1] may from time to time make such general rules, prescribe such forms, and do such things as he thinks expedient, subject to the provisions of this Ordinance-
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(a) for regulating the practice of registration under this Ordinance ;
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(b) for classifying goods for the purposes of designs ;
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(c) for prescribing the fees payable in respect of applications and registration and other matters under this Ordinance, and the mode of payment of the same ;
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(d) generally for regulating all things by this Ordinance placed under the direction or control of the Registrar.
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(2) Any rules made in pursuance of this section shall be published in the Gazette, and it shall be lawful for the Minister,[1] by Order [1] to be published in the Gazette, to alter, amend, or revoke any such rules.
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33. In this Ordinance, unless the context otherwise requires-
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” copyright” means the exclusive right to apply a design to any article of manufacture or to any such substance as aforesaid in the class or classes in which the design is registered.
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” design ” means any design applicable to any article of manufacture or to any substance, artificial or natural, or partly artificial and partly natural, whether the design is applicable for the pattern, or for the shape or configuration, or for the ornament thereof, or for any two or more of such purposes, and by whatever means it is applicable, whether by printing, painting, embroidering, weaving, sewing, modelling, casting, embossing, engraving, staining, or any other means whatever, manual, mechanical, or chemical, separate or combined ;
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” prescribed ” means prescribed by the Schedule to this Ordinance or by general rules under or within the meaning of this Ordinance ;
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” Registrar ” means the Registrar of Companies, and includes any such officer in the department of the Registrar of Companies as may be authorized by the Registrar of Companies to discharge the duties of the Registrar under this Ordinance.
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Schedules
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