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Short title.
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1. This Ordinance may be cited as the Patents, Designs, Copyright and Trade Marks (Emergency) Ordinance.
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Provisions as to existing licences under patents, designs and copyright of enemies and enemy-subjects, and as to contracts relating thereto.
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2.
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(1) A licence under a patent or for the application of a registered design or granting an interest in a copyright, being a licence which would have been in force in favour of a person resident in Ceylon if neither the proprietor of the patent or registered design, or the owner of the copyright, as the case may be, nor any person otherwise interested therein, had been an enemy, shall not be invalid by reason of the fact that the proprietor or owner or any person otherwise interested therein is an enemy, nor shall any contract, in so far as it relates to any such licence as aforesaid, be invalid by reason of the fact that any party to the contract is an enemy :
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Provided that nothing in this section shall-
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(a) render valid a grant or an assignment of any such licence as aforesaid, or any contract relating to any such licence, if that grant, assignment or contract is made during the existence of a state of war and is unlawful by virtue of any provision of the law relating to trading with the enemy, or
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(b) authorize the performance of any contract relating to any such licence as aforesaid in a manner inconsistent with any of the provisions of the law relating to trading with the enemy, or to the rights or capacity of enemies.
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(2) In the case of any such licence as aforesaid, where an enemy or an enemy subject is, or has at any time since the beginning of the 3rd day of September, 1939, been, whether alone or jointly with any other person, the proprietor of the patent or registered design, or the owner of the copyright, as the case may be, or entitled to any other interest therein (not being merely the interest of a licensee), the Registrar may, on the application of the licensee or any other person interested in the patent, registered design or copyright, by order-
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(b) revoke or vary any conditions subject to which the licence has effect; or
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(c) revoke or vary any of the provisions of a contract relating to the licence in so far as they relate thereto.
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An order for a variation made under this subsection may be revoked or varied by a subsequent order made thereunder.
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Power of Registrar to grant licences under patents, designs or copyright of enemies and enemy subjects.
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3.
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(1) Where-
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(a) an enemy or an enemy subject is, or has at any time since the beginning of the 3rd day of September, 1939, been, whether alone or jointly with any other person, the proprietor of a patent or registered design or the owner of a copyright, or entitled to any other interest in a patent, registered design or copyright (not being merely the interest of a licensee), and
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(b) the Registrar is satisfied that it is in the interest of all or any of Her Majesty’s subjects that the rights conferred by the patent should be exercised, or that the design should be applied or the copyright exercised, as the case may be, and that a person who is not an enemy or an enemy subject desires to exercise the said rights or apply the said design or exercise the said copyright and is in a position so to do,
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the Registrar may, on the application of that person, make an order granting to him a licence under the patent or for the application of the design or granting an interest in the copyright, as the case may be, either for the whole of the residue of the term of the patent, registration or copyright, or for such less period as the Registrar thinks fit.
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(2) The power of the Registrar under this section to make an order granting a licence shall include the power-
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(a) to make an order granting an exclusive licence ;
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(b) to make an order granting a licence in relation to a patent, registered design or copyright, notwithstanding that a licence, whether exclusive or otherwise (not being an exclusive licence granted by virtue of the powers conferred by this section), is in force in relation thereto ;
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(c) to make an order granting a licence on any terms that the Registrar may think expedient; and
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(d) to make an order granting a licence with retro- active effect from such date, not earlier than the 3rd day of September, 1939, as may be specified therein.
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(3) Where, under the power conferred by this section, the Registrar makes an order granting a licence in relation to a patent, registered design, or copyright in relation to which any other licence has been granted otherwise than by an order made under this section, the Registrar may, in relation to that other licence, make any order which the Registrar would have had power to make on an application under subsection (2) of section 2, and which appears to him to be expedient having regard to the order made under this section.
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(4) An order granting a licence under this section, shall, without prejudice to any other method of enforcement, operate as if it were embodied in a deed granting the licence which the patentee, the proprietor of the registered design, or the owner of the copyright, as the case may be, and all other parties having any interest therein, had executed with full capacity so to do, and the order shall accordingly operate to take away from any such party any right in relation thereto the exercise whereof would be inconsistent with the exercise of the licence in accordance with and subject to the terms on which it is granted.
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(5) A licensee under a licence granted under this section may institute proceedings for infringement in his own name as though he were the patentee, the proprietor of the registered design or the owner of the copyright, as the case may be, so, however, that any person other than an enemy who, whether alone or jointly with any other person, is the patentee, the registered proprietor of the registered design, or the owner of the copyright, as the case may be, shall, unless the court in which the proceedings are taken thinks fit to direct otherwise, be made a party to the proceedings either-
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(a) if he consents in writing thereto, as a plaintiff, or
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(b) if he does not so consent, as a defendant.
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Where any person is made defendant to any proceedings by virtue of this subsection, he shall not be liable for any costs unless he enters an appearance and takes part in the proceedings.
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(6) An order granting a licence under this section shall give directions as to the person to whom or the manner in which the licensee is to pay or deal with any royalties or other payments to be paid in respect of the licence. In framing any such directions, the Registrar shall have regard to the purposes of the law relating to trading with the enemy.
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(7) An order under this section and a licence granted by such an order may be varied by a subsequent order made by the Registrar either-
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(a) where the licensee makes application to the Registrar for the variation thereof, or
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(b) where the Registrar is of opinion that circum- stances have arisen which make it just and equitable, or that the public interest requires, that it should be varied.
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(8) An order under this section and a licence granted by such an order may be revoked by a subsequent order made by the Registrar in any of the following cases, that is to say : –
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(a) where the licensee makes application to the Registrar for the revocation thereof;
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(b) where it appears to the Registrar that it was obtained by any misrepresentation, whether intentional or not, or was made or granted without the Registrar’s having full knowledge of the material facts ;
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(c) where the licensee has failed to comply with any term on which the licence was granted or with a direction given under subsection (6) of this section, or has failed to exercise the licence in such a manner as to satisfy the reasonable requirements of the public in relation to the invention, registered design or work in which copyright subsists, as the case may be, or has charged unreasonable or excessive prices in respect of anything made or done in the exercise of the licence ; or
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(d) where the Registrar is of opinion that circum- stances have arisen which make it just and equitable, or that the public interest requires, that it should be revoked.
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Indemnity for sale or use of substitutes for articles protected by patent or copyright owned by enemy or enemy subject.
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4. Where-
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(a) an enemy or an enemy subject is, or has at any time since the beginning of the 3rd day of September, 1939, been, whether alone or jointly with any other person, the proprietor of a patent or of a registered design or the owner of copyright in any work ; and
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(b) with the intention of introducing into the market or trade in Ceylon a substitute for the invention, or any article produced by the use of the invention, protected by such patent, or for any article to which such registered design is applied, or for any work in which such copyright subsists, any person who is not an enemy or an enemy subject sells or makes available for sale to the public in the course of trade or uses for purposes of trade or business or with a view to profit, at any time during the continuance of any war in which Her Majesty may be engaged, any article manufactured, produced or adapted, or any work prepared by such person or any other such person,
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the rights in such patent or the copyright in such registered design or such work shall not be deemed to have been infringed by either of such persons, and no action, claim or other proceedings for any alleged infringement thereof shall be instituted or maintained against either of them in any court in Ceylon.
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Power of Registrar to suspend trade mark rights of an enemy or an enemy subject.
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5.
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(1) Where it is made to appear to the Registrar that it is difficult or impracticable to describe or refer to an article or substance without the use of a trade mark registered in respect of that article or substance, being a trade mark which is, or has at any time since the beginning of the 3rd day of September, 1939, been, registered in the name of an enemy or an enemy subject, whether alone or jointly with another, or which is, or has at any such time as aforesaid been, in the proprietorship of an enemy or an enemy subject, whether alone or jointly with another, the following provisions of this section shall have effect.
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(2) On the application of any person who proposes to deal in the course of trade in Ceylon in an article or substance which is or is intended to be the same as, or equivalent to or a substitute for, the article or substance in respect of which the trade mark is registered, the Registrar may order that the right to the use of the trade mark given by the registration thereof shall be suspended-
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(a) so far as regards use thereof by the applicant and any such use thereof by any other person in relation to goods connected in the course of trade with the applicant as would not be an infringement of the said right if the applicant were the proprietor of the trade mark,
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(b) to such extent and for such period as the Registrar may consider necessary for enabling the applicant to render well known and established some description of, or means of reference to, the article or substance in which he proposes to deal in the course of trade, being a description or means of reference which does not involve the use of the trade mark.
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(3) Where an order has been made under subsection (2), no action for passing off shall lie on the part of any person interested in the trade mark in respect of any use thereof which, by virtue of the order, is not an infringement of the right to the use thereof given by the registration thereof.
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(4) An order under this section may be varied or revoked by a subsequent order made by the Registrar.
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Effect of war on grant of patents and registration of designs and trade marks.
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6.
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(1) It shall be lawful, subject to the provisions of this Ordinance-
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(a) for a patent to be granted under the Patents Ordinance,
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(b) for a design to be registered under the Designs Ordinance, or
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(c) for a trade mark to be registered under the Trade Marks Ordinance,
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on the application of an enemy :
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Provided that, where such a grant or registration as aforesaid is effected on the application of an enemy-
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(i) the grantee or person registered shall not be entitled to require the delivery of the patent or the grant or issue of the certificates of registration, as the case may be ; and
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(ii) the patent, or the rights conferred by the registration, as the case may be, shall be subject to any relevant provisions of any law for the time being in force relating to the custody and disposal of the property of an enemy.
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(2) The Registrar may, in any case in which in his opinion it is desirable in the public interest so to do, refuse to take, or suspend the taking of, any proceedings on or in relation to an application of an enemy for a patent or for the registration of a design or of a trade mark.
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(3) References in this section to an application of an enemy shall be construed as including references to an application of an enemy jointly with any other person, whether an enemy or not, and, in the case of an application for a patent, to an application made in respect of an invention communicated by an enemy.
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Copyright owned by enemy. (2 & 3 Geo. Vi, c. 107.) (1 & 2 Geo. v, c. 46.)
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7. Where an enemy, whether alone or jointly with any other person, is the owner of copyright which, notwithstanding the state of war, is deemed by virtue of the provisions of the Patents, Designs, Copyright and Trade Marks (Emergency) Act, 1939, of the United Kingdom, to subsist under the Copyright Act, 1911, of the United Kingdom, the law relating to trading with the enemy and to the rights or capacity of enemies shall, as respects that enemy, have effect in relation to such copyright.
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Power of Registrar to extend time-limits having regard to war circumstances.
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8.
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(1) The Registrar may, subject to such conditions, if any, as he thinks fit to impose, extend the time limited by or under the Patents Ordinance, the Designs Ordinance, the Trade Marks Ordinance or this Ordinance, for doing any act, where he is satisfied-
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(a) that the doing of the act within the time so limited was prevented by a person’s being on active service or by any other circumstances arising from the existence of a state of war which, in the opinion of the Registrar, justify an extension of the time so limited, or
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(b) that, by reason of circumstances arising from the existence of a state of war, the doing of the act within the time so limited would have been or would be injurious to the rights or interests of the person by or on whose behalf the act is or was to be done or to the public interest.
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(2) An extension under this section of the time for doing any act-
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(a) may be for any period that the Registrar thinks fit notwithstanding that by or under any of the provisions of the Ordinances referred to in subsection (1) or of this Ordinance power is conferred to extend the time for doing that act for a specified period only ; and
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(b) may be granted notwithstanding that that time expired before any application or request for extension was made, or that, by reason of that act not having been done within that time, the relevant application, patent, registration or proceeding has ceased or expired, or become void or invalid, or been treated as abandoned.
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(3) The powers conferred by this section may be exercised notwithstanding that the exercise thereof benefits, whether directly or indirectly, an enemy or an enemy subject.
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Evidence relating to nationality and place of residence, and decisions relating to enemy character.
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9.
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(1) For the purposes of this Ordinance-
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(a) the fact that the address of any person registered in any register kept under the Patents Ordinance or under the Designs Ordinance or under the Trade Marks Ordinance is an address in enemy territory within the meaning of the law relating to trading with the enemy shall be prima facie evidence that that person is resident in that territory, and
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(b) the fact that in any such register a person is stated to be of a particular nationality shall be prima facie evidence that he is of that nationality.
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(2) No order made by the Registrar under this Ordinance shall be held to be invalid by reason only that any decision made for the purposes of the order, on the question whether a particular person is an enemy or an enemy subject, is wrong.
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Persons to be heard before making of orders.
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10. Before deciding as to the making of any order under this Ordinance, the Registrar shall, unless having regard to the circumstances he considers it inexpedient or impossible so to do, give to any person who appears to the Registrar to be interested such opportunity of being heard as appears to the Registrar to be just.
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Fees.
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11. There shall be paid in respect of applications and other matters under this Ordinance such fees as may, from time to time be prescribed.
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Rules.
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12.
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(1) The Minister[1] may make rules for regulating the practice and prescribing the fees payable under this Ordinance, including rules providing for oppositions and rules regulating the service of documents and the time within which any act authorized or required by this Ordinance or the rules may or must be done.
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(2) No rule made by the Minister1 shall have effect until it has been approved by the Senate and the House of Representatives1 and notification of such approval is published in the Gazette. Every rule shall upon such notification of such approval1 be as valid and effectual as if it were herein enacted.
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Interpretation. (1 & 2 Geo. v, c. 46.)
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13.
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(1) In this Ordinance, unless the context otherwise requires-
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” copyright” has the meaning assigned to it by the Copyright Act, 1911, of the United Kingdom ;
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” design” has the meaning assigned to it by the Designs Ordinance;
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” enemy” has the meaning assigned to it by the Defence (Trading with the Enemy) Regulations, 1939, and includes a person deemed to be an enemy for the purposes of those regulations by virtue of any order for the time being in force thereunder ;
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“enemy subject” has the meaning assigned to it by the Defence (Trading with the Enemy) Regulations, 1939 ;
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” law relating to trading with the enemy ” includes the Defence (Trading with the Enemy) Regulations, 1939, the orders in force there-under, and any other law applied or extended to or in operation in Ceylon relating to intercourse or dealings with or for the benefit of enemies or the custody and disposal of enemy property ;
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” patent” has the meaning assigned to it by the Patents Ordinance;
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” prescribed ” means prescribed by rule made under this Ordinance ;
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“Registrar”
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(a) in any context relating to copyright, means the Registrar-General ;
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(b) in any context relating to designs, means the Registrar of Designs under the Designs Ordinance ;
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(c) in any context relating to patents, means the Registrar of Patents under the Patents Ordinance ; and
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(d) in any context relating to trade marks, means the Registrar of Trade Marks under the Trade Marks Ordinance;
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” trade mark ” has the meaning assigned to it by the Trade Marks Ordinance.
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(2) Where a patent has been granted to any person in respect of an invention communicated to him by some other person, that other person shall, for the purposes of this Ordinance, be deemed to have an interest in the patent unless the contrary is proved.
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(3) References in this Ordinance to any written law shall be construed as references to that written law as amended by any subsequent written law, including, except where the context otherwise requires, this Ordinance.
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