Registered Designs (Bailiwick of Guernsey) Ordinance, 2005

View printable version

To access the legislation in printable format, please click the "view printable version" button.

The Registered Designs (Bailiwick of Guernsey) Ordinance, 2005

ARRANGEMENT OF SECTIONS

PART I

DESIGNS & REGISTER OF DESIGNS

1. Designs.

2. Register of Designs.

3. Evidence of entries in Register.

PART II

REGISTRATION

4. Entitlement to registration.

5. Applications for registration.

6. Registration of designs in Register.

7. Certificate and date of registration.

8. Revocation of registration.

9. Registration of assignments, etc.

10. Notice of Registrar's decision to refuse registration, etc.

PART III

MODIFICATION & CORRECTION BY REGISTRAR

11. Modification of registration.

12. Power to correct clerical errors.

PART IV

APPEALS AND RECTIFICATION

13. Right of appeal to Royal Court.

14. Rectification of Register by order of Royal Court.

PART V

RIGHTS OF PROPRIETOR OF DESIGN, ETC

15. Rights given by registration,

16. Duration and nature of rights.

17. Infringement of rights, and exceptions.

18. Exemption of innocent infringer from liability for damages.

19. Assignments, etc.

20. Use for services of Crown or States.

21. Certificate of contested validity of registration.

22. Remedy for groundless threats of infringement proceedings.

PART VI

DESIGN RIGHT AGENTS

23. Recognition of agents.

24. The register of design right agents.

25. Unregistered persons not to be described as authorised design right agents.

26. Power to prescribe conditions, etc, for mixed partnerships and bodies corporate.

27. Privilege for communications with authorised design right agents.

28. Power of Registrar to refuse to deal with certain agents.

PART VII

GENERAL PROVISIONS

29. Inspection of designs.

30. Information as to existence of right in design.

31. Offence of falsely representing design as registered

32. Falsification of Register, etc.

33. Offences committed by bodies corporate and partnerships, etc.

34. Interpretation.

35. General provisions as to subordinate legislation.

36. Saving for forfeited goods.

37. Repeal, and saving for designs registered under 1922 Law.

38. Territorial waters.

39. Guernsey ships.

40. Citation.

41. Extent.

42. Commencement.

SCHEDULE 1: Infringement of rights in registered designs.

SCHEDULE 2: Use of registered designs for services of Crown or States.

The Registered Designs

(Bailiwick of Guernsey) Ordinance, 2005

THE STATES, in pursuance of their resolution of the 27^th November, 2002[a], and in exercise of the powers conferred on them by sections 1 and 3 of the Intellectual Property (Enabling Provisions) (Bailiwick of Guernsey) Law, 2004[b] and all other powers enabling them in that behalf, hereby order:-

PART I

DESIGNS & REGISTER OF DESIGNS

Designs.

1. In this Ordinance "design" means the appearance of the whole or a part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture or materials of the product or its ornamentation.

Register of Designs.

2. (1) The Registrar of Intellectual Property ("the Registrar") shall establish and maintain a register to be called the Register of Designs in which, subject to the provisions of this Ordinance -

(a) designs may be registered, and

(b) persons may be registered as the proprietors of those designs.

(2) The Register of Designs need not be kept in documentary form.

(3) The Register of Designs shall contain -

(a) the names and addresses of persons registered in it as the proprietors of designs so registered,

(b) the date on which persons were so registered,

(d) details of any limitations subject to which designs are registered in it, and

(e) such other matters as may be prescribed by regulations of the States of Guernsey Commerce and Employment Department ("the Department") or as the Registrar may think fit.

(4) Subject to subsection (5) -

(a) the Register of Designs shall be open for public inspection, and

(b) the Registrar shall, on payment of the appropriate fee, supply copies and extracts (certified or uncertified) of any entry in it.

(5) Where it appears to the Registrar that a design entered in the Register of Designs is one in respect of which, under the laws relating to the registration of designs in force in the designated country concerned, the publication of information, or the communication of information to any person or class of persons, is prohibited or restricted, the Registrar may impose an equivalent prohibition or restriction on the publication or communication of information in respect of that design.

(6) No notice of any trust, whether express, implied or constructive, shall be entered in the Register of Designs, and the Registrar is not affected by any such notice.

Evidence of entries in Register.

3. (1) The Register of Designs is prima facie evidence of anything required or authorised to be entered in it.

(2) A copy or extract of an entry in the Register of Designs supplied under section 2(4) and purporting to be a certified copy or extract is admissible in evidence without further proof and without production of the original.

PART II

REGISTRATION

Entitlement to registration.

4. (1) Only the oversea registered proprietor of an oversea registered design may be registered as the proprietor of a design in the Register of Designs, and in this Ordinance -

(a) an "oversea registered design" means a design registered in a designated country in accordance with the laws relating to the registration of designs in force there,

(b) the "oversea registered proprietor" of an oversea registered design means the person registered in a designated country as the proprietor of that design in accordance with the laws described in paragraph (a), and

(c) a "designated country" means a country designated for the purposes of this Ordinance by regulations of the Department.

(2) Regulations of the Department under this section may also designate, for the purposes of this Ordinance, any office which is responsible, elsewhere than in the Bailiwick, for the registration of designs; and references in this Ordinance (however expressed) -

(a) to a designated country, include references to an office which is so designated,

(b) to registration, or being registered, in a designated country, include references to registration, or being registered, by such an office in accordance with the laws relating to the registration of designs which govern that office, and

(c) to the laws relating to the registration of designs in force in a designated country, include references to the laws relating to the registration of designs which govern that office,

and the provisions of this Ordinance shall be construed accordingly with such modifications as may be necessary.

Applications for registration.

5. (1) A person wishing to be registered as the proprietor of a design in the Register of Designs shall apply in that behalf to the Registrar.

(2) An application for registration shall be made in such form and manner as the Registrar may determine and shall be accompanied by -

(a) such information and documents as the Registrar may reasonably require for the purpose of determining the application,

(b) the appropriate fee,

(d) anything else prescribed by regulations of the Department under this subsection.

(3) On receipt of an application for registration and at any time thereafter the Registrar may by notice in writing require the applicant to provide such additional information and documents as the Registrar may reasonably require for the purpose of determining the application.

(4) Any information or document to be provided to the Registrar under this section shall be in such form, and authenticated in such manner, as the Registrar may require.

(5) The Registrar's requirements under subsections (2), (3) and (4) may differ as between different applications.

(6) An application for registration may be withdrawn by notice in writing to the Registrar at any time before it is determined.

(7) The Registrar -

(a) shall refuse an application for registration which is not accompanied by the appropriate fee, and

(b) may refuse an application for registration which is otherwise not made in accordance with the provisions of this Ordinance.

Registration of designs in Register.

6. (1) The Registrar shall, on receipt of an application under section 5 from a person wishing to be registered as the proprietor of a design in the Register of Designs, grant the application if and only if he is satisfied that -

(a) the design is an oversea registered design, and

(b) the applicant is the oversea registered proprietor of that design.

(2) The registration shall include the entry on the Register of Designs of any limitation which attaches to the registration of the design in the designated country concerned and which has been made under the laws relating to the registration of designs in force in that country.

(3) Where the Registrar decides -

(a) to refuse an application for registration in the Register of Designs, or

(b) other than with the consent of the applicant, to include an entry in the registration of a limitation,

he shall serve notice in writing of the decision on the applicant in accordance with the provisions of section 10.

Certificate and date of registration.

7. (1) The Registrar shall, on registration of a person as the proprietor of a design in the Register of Designs, issue a certificate of registration.

(2) The Registrar may -

(a) if satisfied that the certificate of registration has been lost or destroyed, and in any other case in which he thinks it expedient, and

(b) on payment of the appropriate fee,

furnish copies of the certificate.

(3) The registration of a person as the proprietor of a design in the Register of Designs has effect on and from the date of registration.

Revocation of registration.

8. (1) The Registrar shall revoke the registration of a person as the proprietor of a design in the Register of Designs -

(a) if, subject to the provisions of subsections (2) and (3), it appears to the Registrar that -

(i) the registration of the design in the designated country concerned has been cancelled or declared to be invalid under the laws relating to the registration of designs in force there, or

(ii) the right in the design has expired in that country by reason of a failure to extend the duration of the right under those laws,

(b) if it appears to the Registrar that, otherwise than as mentioned in paragraph (a) -

(i) the design is not or is no longer an oversea registered design, or

(ii) the person is not or is no longer the oversea registered proprietor of that design, or

(c) if that person applies to the Registrar for his registration to be revoked (and the provisions of section 5 apply to an application under this paragraph as they apply to an application for registration).

(2) If in the designated country concerned an appeal is instituted against -

(a) the cancellation of the registration of a design, or

(b) a declaration that the registration of a design is invalid,

the Registrar shall not under subsection (1)(a)(i) revoke the registration of a person as the proprietor of that design before the appeal is finally disposed of.

(3) If, in the designated country concerned, an application is made under the laws relating to the registration of designs in force there for -

(a) the extension of the right in an oversea registered design, or

(b) an order for the restoration of the right in an oversea registered design,

the Registrar shall not under subsection (1)(a)(ii) revoke the registration of a person as the proprietor of that design unless and until the application is refused (and, if proceedings are instituted against the refusal, before the proceedings are finally disposed of).

(4) A decision of the Registrar to revoke a registration, other than on the application of the person registered as proprietor, shall not have effect until the end of the period within which, under section 13, an appeal can be brought against the revocation or, if an appeal is brought within that period, and unless the Royal Court orders otherwise, until the appeal is finally disposed of.

(5) Where the Registrar decides, other than on the application of the person registered as proprietor in the Register of Designs, to revoke a registration, the Registrar shall serve notice in writing of the decision on that person in accordance with the provisions of section 10.

(6) A registration which is revoked shall be treated as being void ab initio or from such later date as the Registrar may direct.

Registration of assignments, etc.

9. (1) Where a person becomes entitled -

(a) to a design registered in the Register of Designs or to a share in such a design by assignment, transmission or operation of law, or

(b) to any other interest in such a design as mortgagee, licensee or otherwise,

he may apply to the Registrar for registration in the Register of Designs of -

(i) his title as proprietor or co-proprietor or, as the case may be,

(ii) notice of his interest.

(2) The provisions of section 5 apply to an application under subsection (1) as they apply to an application for registration.

(3) An application under subsection (1) for registration of the title or interest of a person becoming entitled to a design, or a share or other interest in a design, by or by virtue of an assignment, mortgage, licence or other instrument, may be made by the assignor, mortgagor, licensor or other party to that instrument, as the case may be.

(4) Where an application is made under subsection (1) for registration of the title or interest of any person, the Registrar shall -

(a) where the applicant has become entitled to the design or a share therein by assignment, transmission or operation of law, and if the Registrar is satisfied that that person's title is registered in respect of the design in the designated country concerned under the laws relating to the registration of designs in force there -

(i) register him in the Register of Designs as proprietor or co-proprietor of the design, and

(ii) enter in the Register particulars of the instrument or event by which he derives title, or

(b) in any other case, enter in the Register -

(i) notice of his entitlement or interest, and

(ii) particulars of the instrument or event by which he derives title or, as the case may be, by which the interest is created.

(5) Except for the purposes of an application for rectification of the Register of Designs under section 14, a document in respect of which no entry is made in the Register of Designs under subsection (4) shall not be admitted in any court as evidence of the title of any person to a design registered in the Register of Designs, or to any share or other interest in such a design, unless the court directs otherwise.

(6) Where the Registrar decides, other than on the application of the person registered as proprietor in the Register of Designs, to enter any right, title or interest in the Register of Designs under this section, the Registrar shall serve notice in writing of the decision on that person in accordance with the provisions of section 10.

Notice of Registrar's decision to refuse registration, etc.

10. Notice of a decision of the Registrar -

(a) to refuse an application for registration in the Register of Designs,

(b) other than with the consent of the applicant, to include an entry in a registration of a limitation, or

(i) to revoke or modify a registration, or

(ii) to enter any right, title or interest in the Register of Designs under section 9,

shall state the grounds of the Registrar's decision and give particulars of the right of appeal conferred by section 13.

PART III

MODIFICATION & CORRECTION BY REGISTRAR

Modification of registration.

11. (1) The Registrar may, on the application of the person registered as proprietor of a design in the Register of Designs or of his own motion, modify the registration in order to replicate -

(a) the registration of the design in the designated country concerned, or

(b) any modification, correction or rectification made to the registration of the design in that country,

under the laws relating to the registration of designs in force there.

(2) The provisions of section 5 apply to an application under this section as they apply to an application for registration.

(3) Unless the Registrar directs otherwise, a modification of a registration made under this section has effect on and from the date of the original registration.

(4) The modifications of a registration which may be made under this section include (without prejudice to the generality of the Registrar's powers) the entry on the Register of Designs of a limitation in order to replicate any limitation which attaches to the registration of the design in the designated country concerned and which has been made under the laws relating to the registration of designs in force in that country.

(5) Where the Registrar decides, other than on the application of the person registered as proprietor in the Register of Designs, to modify a registration, the Registrar shall serve notice in writing of the decision on that person in accordance with the provisions of section 10.

Power to correct clerical errors.

12. (1) The Registrar may correct any error in the Register of Designs or in an application for registration.

(2) A correction may be made under this section -

(a) on a request in writing, and on payment of the appropriate fee, by the person registered as proprietor or by the applicant for registration (as the case may be), or

(b) of the Registrar's own motion.

(3) Where the Registrar proposes to make a correction other than on a request under subsection (2)(a), he shall -

(a) give notice of the proposal to the person registered as proprietor or to the applicant for registration (as the case may be), and

(b) give them an opportunity to be heard before making the correction.

PART IV

APPEALS AND RECTIFICATION

Right of appeal to Royal Court.

13. (1) If the Registrar decides -

(a) to refuse an application for registration in the Register of Designs,

(b) other than with the consent of the applicant, to include an entry in a registration of a limitation, or

(i) to revoke or modify a registration, or

(ii) to enter any right, title or interest in the Register of Designs under section 9,

then the applicant for registration or, as the case may be, the person registered as proprietor may appeal against the decision to the Royal Court; and, for the purposes of this Ordinance -

(A) "the Royal Court" means the Royal Court sitting as an Ordinary Court,

(B) the Royal Court is constituted by the Bailiff sitting unaccompanied by the Jurats,

(C) the Royal Court may appoint one or more assessors to assist it in the determination of the proceedings or any matter relevant thereto, and

(D) the Royal Court has, in relation to functions conferred on it by this Ordinance, jurisdiction throughout the Bailiwick.

(2) The grounds of an appeal under this section are that the Registrar's decision was ultra vires, unreasonable in law or wrong.

(3) An appeal under this section shall be instituted -

(a) within a period of 28 days immediately following the date of the notice of the Registrar's decision, and

(b) by summons served on the Registrar stating the grounds and material facts on which the appellant relies.

(4) The Registrar may, where an appeal under this section has been instituted, apply to the Royal Court, by summons served on the appellant, for an order that the appeal shall be dismissed for want of prosecution; and, on hearing the application, the Royal Court may -

(a) dismiss the appeal or dismiss the Registrar's application (in either case on such terms and conditions as the Royal Court may direct), or

(b) make such other order as the Royal Court considers just;

and the provisions of this subsection are without prejudice to the inherent powers of the Royal Court or to the provisions of rule 36(2) of the Royal Court Civil Rules, 1989[c].

(5) On an appeal under this section the Royal Court may -

(a) set the decision of the Registrar aside and, if the Royal Court considers it appropriate to do so, remit the matter to him with such directions as the Royal Court thinks fit, or

(b) confirm the decision of the Registrar, in whole or in part.

(6) An appeal from a decision of the Royal Court made on an appeal under this section lies, with leave of the Royal Court or Court of Appeal, to the Court of Appeal on a question of law.

(7) Section 21 of the Court of Appeal (Guernsey) Law, 1961[d] ("powers of a single judge") applies to the powers of the Court of Appeal to give leave to appeal under subsection (6) as it applies to the powers of the Court of Appeal to give leave to appeal under Part II of that Law.

(8) This section does not confer a right of appeal on a question which has been determined by the Royal Court on an application by the Registrar for directions, or for a determination of a question of fact, law or procedure, under section 6 of the Intellectual Property (Office of Registrar) (Bailiwick of Guernsey) Ordinance, 2005.

Rectification of Register by order of Royal Court.

14. (1) The Royal Court may, subject to subsection (3), on the application of any person aggrieved, order the Registrar to rectify the Register of Designs by making, revoking or modifying any entry therein in accordance with the provisions of section 6, 8, 9 or 11.

(2) In proceedings under this section the Royal Court may determine any question which it is necessary or expedient to decide in connection with the rectification of the Register of Designs.

(3) A copy of an application for an order under this section shall be served on the Registrar not less than 7 days (or such other period as the Royal Court may, in its absolute discretion, direct) before the day of the hearing, and the Registrar is entitled to appear and be heard on the application and shall appear if so ordered by the Royal Court.

(4) A copy of an order of the Royal Court under this section shall be served on the Registrar who shall, on receipt thereof, rectify the Register of Designs accordingly.

(5) A rectification of the Register of Designs under this section has effect as follows -

(a) an entry made has effect on and from the date on which it should have been made,

(b) an entry modified has effect as if originally made in its modified form, and

unless the Royal Court directs otherwise in any particular case.

(6) The orders which may be made by the Royal Court under this section include (without prejudice to the generality of the Royal Court's powers) an order for the entry on the Register of Designs of a limitation in order to replicate any limitation which attaches to the registration of the design in the designated country concerned and which has been made under the laws relating to the registration of designs in force in that country.

PART V

RIGHTS OF PROPRIETOR OF DESIGN, ETC

Rights given by registration.

15. (1) The registration of a person as the proprietor of a design in the Register of Designs gives him the exclusive right to use the design and any design which does not produce on the informed user a different overall impression.

(2) For the purposes of this Ordinance any reference to the use of a design includes a reference to -

(a) the making, offering, putting on the market, importing, exporting or using of a product in which the design is incorporated or to which it is applied, or

(b) stocking such a product for those purposes.

(3) In determining for the purposes of subsection (1) whether a design produces a different overall impression on the informed user, the degree of freedom of the author in creating his design shall be taken into consideration.

(4) The right conferred by subsection (1) is subject to any limitation attaching to the registration in question.

Duration and nature of rights.

16. (1) The right in a design of the person registered in the Register of Designs as proprietor of the design subsists as long as the registration subsists.

(2) The right in a design registered in the Register of Designs is personal or movable property.

(3) The right in a design registered in the Register of Designs is transferable by assignment, testamentary disposition or operation of law as personal or movable property.

Infringement of rights, and exceptions.

17. (1) The provisions of Schedule 1 have effect in relation to the infringement of rights in designs registered in the Register of Designs.

(2) The right in a design registered in the Register of Designs is not infringed by -

(a) acts done privately and for purposes which are not commercial,

(b) acts done for experimental purposes,

(c) acts of reproduction for teaching purposes or for the purpose of making citations provided that the conditions mentioned in subsection (3) are satisfied,

(d) the equipment on ships or aircraft registered elsewhere than in the Bailiwick when they temporarily enter the Bailiwick,

(e) the importation into the Bailiwick of spare parts and accessories for the purpose of repairing such ships and aircraft, or

(f) the execution of repairs on such ships and aircraft.

(3) The conditions mentioned in this subsection are -

(a) the act of reproduction is compatible with fair trade practice and does not unduly prejudice the normal exploitation of the design, and

(b) mention is made of the source.

(4) The right in a design registered in the Register of Designs is not infringed by an act which relates to a product in which any design protected by the registration is incorporated or to which it is applied if the product has been put on the market in the Bailiwick or the EEA by the person so registered as proprietor or with his consent.

(5) The right in a design registered in the Register of Designs of a component part which may be used for the purpose of the repair of a complex product so as to restore its original appearance is not infringed by the use for that purpose of any design protected by the registration.

(6) No proceedings shall be taken in respect of an infringement of the right in a design registered in the Register of Designs committed before the date on which the certificate of registration of the design under section 7 is granted.

Exemption of innocent infringer from liability for damages.

18. (1) In proceedings for the infringement of the right in a design registered in the Register of Designs brought by virtue of paragraph 2 of Schedule 1, damages shall not be awarded against a defendant who proves that at the time of the infringement he did not know, and had no reason to believe, that the design was so registered, but without prejudice to any other remedy.

(2) A person shall not be deemed to have been aware or to have had reasonable grounds for supposing that a design was registered in the Register of Designs by reason only of the marking of a product with -

(a) the word "registered" or any abbreviation thereof, or

(b) any word or words expressing or implying that the design applied to, or incorporated in, the product has been so registered,

unless the number of the design accompanies the word or words or the abbreviation in question.

(3) For the purposes of subsection (2) the "number" of a design may be the number of the design allocated for the purposes of this Ordinance or the laws relating to the registration of designs in force in the designated country concerned.

(4) Nothing in this section affects the power of the court to grant an injunction in any proceedings for infringement of the right in a design registered in the Register of Designs.

Assignments, etc.

19. (1) Subject to any rights vested in any other person of which notice is entered in the Register of Designs, the person or persons registered as proprietor of a design in the Register of Designs may -

(a) assign, grant licences under or otherwise deal with the design, and

(b) give effectual receipts for any consideration for any such assignment, licence or dealing.

(2) Where unregistered design right subsists in a design registered in the Register of Designs and the proprietor of the design so registered is also the unregistered design right owner, an assignment of the unregistered design right shall be taken also to be an assignment of the right in the design so registered, unless a contrary intention appears.

Use for services of Crown or States.

20. The provisions of Schedule 2 have effect in relation to the use of designs registered in the Register of Designs for the services of the Crown or the States and the rights of third parties in respect of such use.

Certificate of contested validity of registration.

21. (1) If in any proceedings before a court in the Bailiwick the validity of the registration of a design in the Register of Designs is contested, and it is found by the court that the design is, to any extent, validly registered, the court may certify that the validity of the registration of the design was contested in those proceedings.

(2) Where such a certificate is granted, or where an equivalent certificate in respect of the design is granted in the designated country concerned under the laws relating to the registration of designs in force there, then, if in any subsequent proceedings before a court in the Bailiwick for infringement of the right in the design or for invalidation of the registration of the design a final order or judgment is made or given in favour of the person registered in the Register of Designs as proprietor, he is, unless the court directs otherwise, entitled to his costs on an indemnity basis.

(3) Subsection (2) does not apply to the costs of an appeal in any such subsequent proceedings.

Remedy for groundless threats of infringement proceedings.

22. (1) Where any person (whether entitled to or interested in a design registered in the Register of Designs or not) by circulars, advertisements or otherwise threatens another person with proceedings for infringement of the right in a design so registered, a person aggrieved by the threats may bring an action against him claiming -

(a) a declaration to the effect that the threats are unjustifiable,

(b) an injunction against the continuance of the threats,

(2) If the defendant proves that the acts in respect of which proceedings were threatened constitute or, if done, would constitute, an infringement of the right in a design registered in the Register of Designs, the plaintiff is entitled to the relief claimed only if he shows that the registration is invalid.

(3) Proceedings may not be brought under this section in respect of a threat to bring proceedings for an infringement alleged to consist of making or importing anything.

(4) Mere notification that a design is registered in the Register of Designs does not constitute a threat of proceedings for the purposes of this section.

PART VI

DESIGN RIGHT AGENTS

Recognition of agents.

23. Except as otherwise provided by regulations of the Department, any act required or authorised by this Ordinance or the Unregistered Design Rights (Bailiwick of Guernsey) Ordinance, 2005 to be done by or to a person in connection with the registration of a design, or any procedure relating to a design, may be done by or to an agent authorised by that person orally or in writing.

The register of design right agents.

24. (1) The Department may make regulations requiring the keeping of a register of persons who act as agent for others for the purpose of applying for or obtaining the registration of designs; and in this Ordinance an "authorised design right agent" means a person whose name is entered in the register kept pursuant to regulations under this section.

The register shall be called "the register of design right agents".

(2) The regulations may contain such provision as the Department thinks fit regulating the registration of persons, and may in particular -

(a) require the payment of such fees as may be prescribed, and

(b) authorise in prescribed cases the erasure from the register of the name of any person registered in it, or the suspension of a person's registration.

(3) The regulations may delegate the keeping of the register to another person, and may confer on that person -

(a) power to make rules -

(i) with respect to the payment of fees, in the cases and subject to the limits prescribed by the regulations, and

(ii) in respect of any other matter which could be provided for by the regulations, and

(b) such other functions, including disciplinary functions, as may be prescribed by the regulations.

Unregistered persons not to be described as authorised design right agents.

25. (1) An individual who is not an authorised design right agent shall not -

(a) carry on a business (otherwise than in partnership) under any name or other description which contains the words "authorised design right agent", or

(b) in the course of a business otherwise describe or hold himself out, or permit himself to be described or held out, as an authorised design right agent.

(2) A partnership shall not -

(a) carry on a business under any name or other description which contains the words "authorised design right agent", or

(b) in the course of a business otherwise describe or hold itself out, or permit itself to be described or held out, as a firm of authorised design right agents,

unless all the partners are authorised design right agents or the partnership satisfies such conditions as may be prescribed for the purposes of this section.

(3) A body corporate shall not -

(a) carry on a business (otherwise than in partnership) under any name or other description which contains the words "authorised design right agent", or

(b) in the course of a business otherwise describe or hold itself out, or permit itself to be described or held out, as an authorised design right agent,

unless all the directors of the body corporate are authorised design right agents or the body satisfies such conditions as may be prescribed for the purposes of this section.

(4) A person who contravenes this section is guilty of an offence and is liable on summary conviction to a fine not exceeding level 5 on the uniform scale.

(5) The provisions of this section have effect only if regulations have been made under section 24(1) requiring the keeping of the register of design right agents.

Power to prescribe conditions, etc, for mixed partnerships and bodies corporate.

26. (1) The Department may make regulations prescribing the conditions to be satisfied for the purposes of section 25 (persons entitled to be described as authorised design right agents) -

(a) in relation to a partnership where not all the partners are qualified persons, or

(b) in relation to a body corporate where not all the directors are qualified persons,

and imposing requirements to be complied with by such partnerships or bodies corporate.

(2) The regulations may, in particular -

(a) prescribe conditions as to the number or proportion of partners or directors who must be qualified persons,

(b) impose requirements as to -

(i) the identification of qualified and unqualified persons in professional advertisements, circulars or letters issued by or with the consent of the partnership or body corporate and which relate to its business, and

(ii) the manner in which a partnership or body corporate is to organise its affairs so as to secure that qualified persons exercise a sufficient degree of control over the activities of unqualified persons.

(3) Contravention of a requirement imposed by the regulations is an offence for which a person is liable on summary conviction to a fine not exceeding level 5 on the uniform scale.

(4) In this section "qualified person" means an authorised design right agent.

Privilege for communications with authorised design right agents.

27. (1) This section applies to communications as to any matter relating to the protection of any design.

(2) Any such communication -

(a) between a person and his design right agent, or

(b) for the purpose of obtaining, or in response to a request for, information which a person is seeking for the purpose of instructing his design right agent,

is privileged from disclosure in legal proceedings in the same way as a communication between a person and his Advocate or, as the case may be, a communication for the purpose of obtaining, or in response to a request for, information which a person is seeking for the purpose of instructing his Advocate.

(3) In subsection (2) "design right agent" means -

(a) an authorised design right agent,

(b) a partnership entitled to describe itself as a firm of authorised design right agents, or

Power of Registrar to refuse to deal with certain agents.

28. (1) The Department may make regulations authorising the Registrar to refuse to recognise as agent in respect of any business under this Ordinance or the Unregistered Design Rights (Bailiwick of Guernsey) Ordinance, 2005 -

(a) a person who has been convicted of an offence under section 25 (unregistered persons describing themselves as authorised design right agents),

(b) an individual whose name has been erased from and not restored to, or who is suspended from, the register of design right agents on the ground of misconduct,

(c) a person who is found by the Registrar to have been guilty of such conduct as would, in the case of an individual registered in the register of design right agents, render him liable to have his name erased from the register on the ground of misconduct,

(d) a partnership or body corporate of which one of the partners or directors is a person whom the Registrar could refuse to recognise under paragraph (a), (b) or (c).

(2) The regulations may contain such incidental and supplementary provisions as appear to the Department to be appropriate and may, in particular, prescribe circumstances in which a person is or is not to be taken to have been guilty of misconduct.

PART VII

GENERAL PROVISIONS

Inspection of designs.

29. (1) Subject to the following provisions of this section, when a design is registered in the Register of Designs, the representation or specimen of the design provided to the Registrar under section 5(2)(c) shall, on and from the day of registration, be open to public inspection at the office of the Registrar (or such other place as the Registrar may determine).

(2) Where an application for the registration of a design in the Register of Designs is abandoned or refused, no representation or specimen filed in support of the application shall be open to public inspection.

(3) Where it appears to the Registrar that the representation or specimen of a design entered in the Register of Designs is one in respect of which, in the designated country concerned, public inspection is prohibited or restricted under the laws relating to the registration of designs in force there, the Registrar may impose an equivalent prohibition or restriction on the public inspection of that representation or specimen.

Information as to existence of right in design.

30. On the request of a person furnishing such information as may enable the Registrar to identify the design, and on payment of the appropriate fee, the Registrar shall -

(a) inform him whether the design is registered in the Register of Designs, and

(b) state the date of registration and the name and address of the person registered as proprietor in the Register of Designs.

Offence of falsely representing design as registered.

31. (1) If a person falsely represents that a design applied to, or incorporated in, a product sold by him is registered in the Register of Designs, he is guilty of an offence and liable on summary conviction to a fine not exceeding level 3 on the uniform scale.

(2) If a person, when the right in a design registered in the Register of Designs has ceased to subsist, represents (expressly or by implication) that a design applied to, or incorporated in, any product sold by him is still registered in the Register of Designs, he is guilty of an offence and liable on summary conviction to a fine not exceeding level 1 on the uniform scale.

(3) For the purposes of this section, the use in the Bailiwick in relation to a design -

(a) of the word "registered", or

(b) of any other word or symbol importing a reference (express or implied) to registration,

shall be deemed to be a representation as to registration in the Register of Designs unless it is shown that the reference is to registration elsewhere than in the Bailiwick and that the design is in fact so registered.

Falsification of Register, etc.

32. (1) If person makes, or causes or permits to be made, a false entry in the Register of Designs, knowing or having reason to believe that it is false, he is guilty of an offence.

(2) If a person -

(a) makes or causes or permits to be made anything falsely purporting to be a copy of or extract from an entry in the Register of Designs, or

(b) produces or tenders or causes or permits to be produced or tendered in evidence any such thing,

knowing or having reason to believe that it is false, he is guilty of an offence.

(3) A person guilty of an offence under this section is liable -

(a) on summary conviction, to imprisonment for a term not exceeding 3 months, or a fine not exceeding level 5 on the uniform scale, or both,

(b) on conviction on indictment, to imprisonment for a term not exceeding two years, or a fine, or both.

Offences committed by bodies corporate and partnerships, etc.

33. (1) Where an offence under this Ordinance is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any director, manager, secretary or other similar officer of the body corporate, or any person purporting to act in any such capacity, he as well as the body corporate is guilty of the offence and may be proceeded against and punished accordingly.

(2) Where the affairs of a body corporate are managed by its members, subsection (1) applies to a member in connection with his functions of management as if he were a director.

(3) Proceedings for an offence under this Ordinance alleged to have been committed by a partnership shall be brought against the partnership in the name of the firm and not in that of the partners, but without prejudice to any liability of the partners under subsection (5).

(4) A fine imposed on a partnership on its conviction in such proceedings shall be paid out of the partnership assets.

(5) Where an offence under this Ordinance is committed by a partnership and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of, any partner or any person purporting to act in that capacity, he as well as the partnership is guilty of the offence and may be proceeded against and punished accordingly.

Interpretation.

34. (1) In this Ordinance, unless the context requires otherwise -

"appropriate fee" means the fee determined by the Registrar after consultation with the Department,

"author" of a design means the person who creates it, but in the case of a design which is computer-generated the person by whom the arrangements necessary for the creation of the design are made shall be taken to be the author,

"authorised design right agent" means a person whose name is entered in the register of design right agents,

"Bailiff" means the Bailiff, Deputy Bailiff, Lieutenant-Bailiff and Juge Délégué,

"Bailiwick" means the Bailiwick of Guernsey, including the territorial waters adjacent thereto,

"business" includes a trade or profession,

"certified", in relation to a copy or extract of an entry in the Register of Designs, means a copy or extract signed by the Registrar and sealed with his official seal,

"commercial purposes" : see subsection (2),

"complex product" means a product which is composed of at least two replaceable component parts, permitting disassembly and reassembly of the product,

"computer-generated", in relation to a design, means that it is generated by computer in circumstances such that there is no human designer,

"copy" or "extract", in relation to an entry in the Register of Designs which is not in documentary form, means a copy or extract in a visible and legible form in which it can be taken away,

"country" includes any territory,

"Crown" includes the Crown in right of the Bailiwick,

"Crown or States use" : see paragraph 3(6) of Schedule 2,

"customs Laws" and "excise Laws" mean those provisions of the Customs and Excise (General Provisions) (Bailiwick of Guernsey) Law, 1972[e], and any other enactment for the time being in force, relating to customs or, as the case may be, excise,

"a department" of the States means any department, council or committee of the States of Guernsey, the States of Alderney or the Chief Pleas of Sark, however called,

"the Department" means the States of Guernsey Commerce and Employment Department,

"department concerned" : see paragraph 3(6) of Schedule 2,

"design" : see section 1,

"designated country" : see sections 4(1)(c) and 4(2),

"designated country concerned" means, in relation to a design entered in the Register of Designs or an oversea registered design, the designated country in which that design is registered under the laws relating to the registration of designs in force there,

"EEA" means the European Economic Area,

"exclusive licence" and related expressions : see paragraph 7(4) of Schedule 1,

"Government department" means a Government department of the United Kingdom and includes any Northern Ireland department, any part of the Scottish Administration and any committee of the National Assembly for Wales,

"infringing product" : see paragraph 3 of Schedule 1,

"laws" include rules, practice and procedures,

"limitation", in relation to the registration of a design, means any limitation, restriction, term or condition subject to which the design is registered in the Register of Designs or, as the context may require, in the designated country concerned, including, for example, any partial disclaimer or any declaration of partial invalidity subject to which a design is registered in the United Kingdom under the Registered Designs Act 1949[f],

"office" includes any authority or body responsible for the registration of designs,

"oversea registered design" : see section 4(1)(a),

"oversea registered proprietor" : see section 4(1)(b),

"person registered as proprietor" : see paragraph 7(2) of Schedule 1,

"product" means any industrial or handicraft item, including packaging, get-up, graphic symbols, typographic type-faces and parts intended to be assembled into a complex product, but not including a computer program,

"Register of Designs" means the Register established under section 2 in which designs are registered and persons are registered as the proprietors of those designs,

"register of design right agents" means the register kept pursuant to regulations under section 24,

"Registrar" means the Registrar of Intellectual Property appointed under the Intellectual Property (Office of Registrar) (Bailiwick of Guernsey) Ordinance, 2005,

"regulations" means regulations made by the Department under this Ordinance,

"Royal Court" means the Royal Court sitting as an Ordinary Court, constituted in accordance with section 13(1),

"services of the Crown or the States" : see paragraph 1(6) of Schedule 2,

"States" means the States of Guernsey,

"the 1922 Law" : see section 37,

"uniform scale" means the uniform scale of fines from time to time specified under the Uniform Scale of Fines (Bailiwick of Guernsey) Law, 1989[g],

"unregistered design right" means a design right within the meaning of the Unregistered Design Rights (Bailiwick of Guernsey) Ordinance, 2005,

"use" of a design : see section 15(2),

and other words or expressions which are defined in the Intellectual Property (Enabling Provisions) (Bailiwick of Guernsey) Law, 2004[h] have the same meanings as in that Law.

(2) Reference in this Ordinance to an act being done in relation to a product for "commercial purposes" are to its being done with a view to the product in question being sold or hired in the course of a business.

(3) The Interpretation (Guernsey) Law, 1948[i] applies to the interpretation of this Ordinance throughout the Bailiwick.

(4) Any reference in this Ordinance to an enactment, statutory instrument or rule of court is a reference thereto as from time to time amended, re-enacted (with or without modification), extended or applied.

General provisions as to subordinate legislation.

35. (1) Regulations under this Ordinance -

(a) may be amended or repealed by subsequent regulations hereunder,

(b) may contain such transitional, consequential, incidental, supplementary and savings provisions as may appear to be necessary or expedient, and

(2) Any power conferred by this Ordinance to make regulations may be exercised -

(a) in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified cases or classes of cases,

(b) so as to make, as respects the cases in relation to which it is exercised -

(i) the full provision to which the power extends, or any lesser provision (whether by way of exception or otherwise),

(ii) the same provision for all cases, or different provision for different cases or classes of cases, or different provision for the same case or class of case for different purposes,

(iii) any such provision either unconditionally or subject to any prescribed conditions.

(3) Regulations under this Ordinance shall be laid before a meeting of the States of Deliberation as soon as possible after being made; and, if at that or the next meeting the States of Deliberation resolve to annul the regulations, then they shall cease to have effect, but without prejudice to anything done under them or to the making of new regulations.

Saving for forfeited goods.

36. Nothing in this Ordinance affects the right of the States or any person deriving title directly or indirectly from the States to sell or use products forfeited under the customs Laws or excise Laws.

Repeal, and saving for designs registered under 1922 Law.

37. (1) Part III of the Law entitled "Loi ayant rapport aux Patentes, Dessins et Marques de Fabrique" of 1922[j] (comprising sections 22 to 37 of that Law), and all other provisions of that Law so far as they relate to designs, are repealed.

That Law is referred to in this section as "the 1922 Law".

(2) A design which immediately before the commencement of this Ordinance was registered in the Register of Designs kept under Part III of the 1922 Law, and any other entry made in that Register, shall on the commencement of this Ordinance be deemed to be a design registered, or an entry made, in the Register of Designs established under this Ordinance; and any interest, limitation, restriction, term or condition subject to which the design was registered under the 1922 Law shall apply in respect of the deemed registration under this subsection.

(3) A person who immediately before the commencement of this Ordinance was registered in the Register of Designs kept under Part III of the 1922 Law as proprietor of a design so registered shall on the commencement of this Ordinance be deemed to be a person registered as proprietor of that design in the Register of Designs established under this Ordinance; and any interest, limitation, restriction, term or condition subject to which he was registered under the 1922 Law shall apply in respect of his deemed registration under this subsection.

(4) For the purposes of giving effect to subsections (2) and (3) -

(a) the Registrar shall replicate, in the Register of Designs established under this Ordinance, all extant entries made in the Register kept under Part III of the 1922 Law, and

(b) the deemed registrations effected by those subsections shall have effect from the date of commencement of this Ordinance.

(5) Any reference in any enactment, statutory instrument or rule of court (however expressed) to -

(a) a design entered in the Register of Designs kept under Part III of the 1922 Law, or

(b) a person registered in that Register as proprietor of such a design,

shall be construed after the date of commencement of this Ordinance as a reference to (as the case may require) -

(i) a design registered in the Register of Designs established under this Ordinance, or

(ii) a person so registered as proprietor of such a design.

(6) Any reference, however expressed, in any enactment, statutory instrument or rule of court to Part III of the 1922 Law or any provision thereof shall, unless the context requires otherwise, be construed as a reference to this Ordinance or (as the case may be) to the corresponding provision of this Ordinance.

(7) References in this section however expressed to the registration of a design in the Register of Designs kept under Part III of the 1922 Law are references to the entry on that Register of a certificate under the seal of the Patent Office to the effect that the design has been registered in England.

(8) The term of a design which, immediately before the commencement of this Ordinance, was registered in the Register of Designs kept under Part III of the 1922 Law shall not be extended or curtailed by reason of the operation of this section.

Territorial waters.

38. For the purposes of this Ordinance the territorial waters adjacent to the Bailiwick shall be treated as part of the Bailiwick.

Guernsey ships.

39. (1) This Ordinance applies to things done on a Guernsey ship as it applies to things done in the Bailiwick.

(2) In this section "Guernsey ship" means a ship registered in Guernsey under the Merchant Shipping Act 1894[k].

Citation.

40. This Ordinance may be cited as the Registered Designs (Bailiwick of Guernsey) Ordinance, 2005.

Extent.

41. This Ordinance has effect throughout the Bailiwick.

Commencement.

42. This Ordinance shall come into force on the 1^st March, 2006.

SCHEDULE 1

Section 17

INFRINGEMENT OF RIGHTS IN REGISTERED DESIGNS

Application of this Schedule.

1. The provisions of this Schedule are to be read in conjunction with the provisions of Part V of this Ordinance (rights of proprietor of design, etc) and contain provision as to infringement.

Infringement of rights.

2. (1) The right in a design registered in the Register of Designs is infringed by a person who, without the consent of the person so registered as proprietor of the design, does anything which, by virtue of section 15, is the exclusive right of the person so registered as proprietor.

(2) Without prejudice to the generality of subparagraph (1), the right in a design registered in the Register of Designs is infringed by a person who, without the consent of the person so registered as proprietor -

(a) imports into the Bailiwick for commercial purposes,

(b) has in his possession for commercial purposes, or

a product which is, and which he knows or has reason to believe is, an infringing product.

(3) This paragraph has effect subject to the provisions of section 17 (exceptions to infringement of rights).

Meaning of "infringing product".

3. (1) In this Ordinance "infringing product", in relation to a design registered in the Register of Designs, shall be construed in accordance with this paragraph.

(2) A product is an infringing product if its making to that design was an infringement of the right in the design.

(3) A product is also an infringing product if -

(a) it has been or is proposed to be imported into the Bailiwick, and

(b) its making to that design in the Bailiwick would have been an infringement of the right in the design or a breach of an exclusive licence agreement relating to the design.

(4) Where it is shown that a product is made to a design in which the exclusive right conferred by section 15 subsists or has subsisted at any time, it shall be presumed until the contrary is proved that the product was made at a time when that right subsisted.

(5) Nothing in subparagraph (3) shall be construed as applying to a product which may lawfully be imported into the Bailiwick by virtue of any enforceable Community right within the meaning of section 2(1) of the European Communities (Bailiwick of Guernsey) Law, 1973[l].

Rights and remedies of proprietor of registered design.

4. (1) An infringement of the right in a design registered in the Register of Designs is actionable by the person so registered as proprietor of the design.

(2) In an action for infringement of the right all such relief by way of damages, injunctions, accounts or otherwise is available to the plaintiff as is available in proceedings in respect of the infringement of any other property right.

(3) The court may, in an action for infringement of the right, having regard to all the circumstances and in particular to -

(a) the flagrancy of the infringement, and

(b) any benefit accruing to the defendant by reason of the infringement,

award such additional damages as the justice of the case may require.

(4) This paragraph has effect subject to section 18 (exemption of innocent infringer).

Order for delivery up.

5. (1) Where a person -

(a) has in his possession, custody or control for commercial purposes an infringing product, or

(b) has in his possession, custody or control anything specifically designed or adapted for making products to a particular design registered in the Register of Designs, knowing or having reason to believe that it has been or is to be used to make an infringing product,

the person so registered as proprietor of the design in question may apply to the court for an order that the infringing product or other thing be delivered up to him or to any other person as the court may direct.

(2) An application shall not be made after the end of the period specified in the following provisions of this paragraph, and no order shall be made unless the court also makes, or it appears to the court that there are grounds for making, an order under paragraph 6 (order as to disposal of infringing products).

(3) An application for an order under this paragraph may not be made after the end of a period of six years from the date on which the product or thing in question was made, subject to subparagraph (4).

(4) If during the whole or any part of that period the person registered in the Register of Designs as proprietor of the design in question -

(a) is a minor or is under legal disability, or

(b) is prevented by fraud or concealment from discovering the facts entitling him to apply for an order,

an application may be made at any time before the end of a period of six years from the date on which he ceased to be a minor or under legal disability or (as the case may be) could with reasonable diligence have discovered those facts.

(5) A person to whom an infringing product or other thing is delivered up in pursuance of an order under this paragraph shall, if an order under paragraph 6 is not made, retain it pending the making of an order, or the decision not to make an order, under that paragraph.

(6) Nothing in this paragraph affects any other power of the court.

Order as to disposal of infringing products.

6. (1) An application may be made to the magistrate's court for an order that an infringing product or other thing delivered up pursuant to an order under paragraph 5 shall be -

(a) forfeited to the person registered in the Register of Designs as proprietor of the design in question, or

(b) destroyed or otherwise dealt with as the magistrate's court thinks fit,

or for a decision that no such order should be made.

(2) In considering what order (if any) should be made, the magistrate's court shall consider whether other remedies available in an action for infringement of the right in the design would be adequate to compensate the person so registered as proprietor and to protect his interests.

(3) The magistrate's court may make such order as it thinks just as to the service of notice of proceedings for an order under this paragraph on persons having an interest in the product or other thing, and any such person is entitled -

(a) to appear in such proceedings, whether or not he was served with notice, and

(b) to appeal against any order made, whether or not he appeared.

(4) An order shall not take effect until the end of the period within which notice of appeal may be given or, if before the end of that period notice of appeal is duly given, until final disposal of the proceedings on the appeal.

(5) Where there is more than one person interested in a product or other thing, the magistrate's court shall make such order as it thinks just and may (in particular) direct that the thing be sold, or otherwise dealt with, and the proceeds divided.

(6) If the magistrate's court decides that no order should be made under this paragraph, the person in whose possession, custody or control the product or other thing was before being delivered up is entitled to its return.

(7) References in this paragraph to a person having an interest in a product or other thing include any person in whose favour an order could be made in respect of it under this paragraph, under section 141 of the Copyright (Bailiwick of Guernsey) Ordinance, 2005, under section 44 of the Performers' Rights (Bailiwick of Guernsey) Ordinance, 2005 or under the corresponding section of the Trade Marks (Bailiwick of Guernsey) Ordinance, 2006 (which make similar provision in relation to infringement of copyright, rights in performances and trade marks).

(8) For the purposes of this paragraph the "magistrate's court" means the court which made the order for delivery up under paragraph 5 or, if that court is no longer seised of the matter -

(a) where the application is to be made in Alderney, the Court of Alderney,

(b) where the application is to be made in Sark, the Court of the Seneschal, and

Rights and remedies of exclusive licensee.

7. (1) An exclusive licensee has, except against the person registered in the Register of Designs as proprietor of the design, the same rights and remedies in respect of matters occurring after the grant of the licence as if the licence had been an assignment.

(2) His rights and remedies are concurrent with those of the person registered in the Register of Designs as proprietor of the design and references in the relevant provisions of this Ordinance to the person so registered as proprietor shall be construed accordingly.

(3) In an action brought by an exclusive licensee by virtue of this paragraph a defendant may avail himself of any defence which would have been available to him if the action had been brought by the person registered in the Register of Designs as proprietor of the design.

(4) In this Ordinance an "exclusive licence" means a licence in writing signed by or on behalf of the person registered in the Register of Designs as proprietor authorising the licensee, to the exclusion of all other persons, including the person granting the licence, to exercise a right which would otherwise be exercisable exclusively by the person so registered as proprietor.

(5) The licensee under an exclusive licence has the same rights against any successor in title who is bound by the licence as he has against the person granting the licence.

Exercise of concurrent rights.

8. (1) Where an action for infringement of the right in a design registered in the Register of Designs brought by the person so registered as proprietor of the design or an exclusive licensee relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action, the person so registered as proprietor or, as the case may be, the exclusive licensee may not, without the leave of the court, proceed with the action unless the other is either joined as a plaintiff or added as a defendant.

(2) A person so registered as proprietor or exclusive licensee who is added as a defendant in pursuance of subparagraph (1) is not liable for any costs in the action unless he takes part in the proceedings.

(3) The above provisions do not affect the granting of interlocutory relief on the application of the person so registered as proprietor or an exclusive licensee.

(4) Where an action for infringement of the right in a design registered in the Register of Designs is brought which relates (wholly or partly) to an infringement in respect of which the person so registered as proprietor and an exclusive licensee have concurrent rights of action -

(a) the court shall, in assessing damages, take into account-

(i) the terms of the licence, and

(ii) any pecuniary remedy already awarded or available to either of them in respect of the infringement,

(b) no account of profits shall be directed if an award of damages has been made, or an account of profits has been directed, in favour of the other of them in respect of the infringement, and

(c) the court shall, if an account of profits is directed, apportion the profits between them as the court considers just, subject to any agreement between them,

and these provisions apply whether or not the person so registered as proprietor and exclusive licensee are both parties to the action.

(5) The person so registered as proprietor shall notify any exclusive licensee having concurrent rights before applying for an order under paragraph 5 (order for delivery up of infringing product, etc.) and the court may, on the application of the licensee, make such order under that paragraph as it thinks fit having regard to the terms of the licence.

SCHEDULE 2

Section 20

USE OF REGISTERED DESIGNS FOR SERVICES OF

CROWN OR STATES

Crown or States use of designs.

1. (1) Notwithstanding anything in this Ordinance -

(a) the States or any department thereof,

(b) any Government department of the United Kingdom, and

(c) any person authorised in writing by any department of the States or by any Government department of the United Kingdom,

may use any design registered in the Register of Designs for the services of the Crown or the States in accordance with the following provisions of this paragraph.

(2) If and so far as the design has, before the date of registration thereof in the Register of Designs, been duly recorded by or applied by or on behalf of the States or any department thereof otherwise than in consequence of the communication of the design directly or indirectly by the person registered in the Register of Designs as proprietor or any person from whom he derives title, any use of the design by virtue of this paragraph may be made free of any royalty or other payment to the registered proprietor.

(3) If and so far as the design has not been recorded or applied as mentioned in subparagraph (2), any use of the design made by virtue of this paragraph at any time after the date of registration thereof in the Register of Designs, or in consequence of any such communication as mentioned in that subparagraph, shall be made on such terms as may be agreed, either before or after the use, between -

(a) the States, or the department thereof, and the person registered in the Register of Designs as proprietor, or (as the case may be)

(b) the Government department and the person so registered as proprietor,

or as may in default of agreement be determined by the Royal Court on a reference under paragraph 4.

(4) The authority of a department of the States or a Government department in respect of a design may be given under this paragraph either before or after the design is registered in the Register of Designs and either before or after the acts in respect 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 department of the States or a Government department under this paragraph, then, unless it appears to the department concerned that it would be contrary to the public interest to do so, the department shall notify the person registered in the Register of Designs as 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 and the next following paragraph "the services of the Crown or the States" shall be deemed to include -

(a) the supply to the government of any country outside the British Islands, in pursuance of an agreement or arrangement between Her Majesty's Government in the United Kingdom and the government of that country, of products required -

(i) for the defence of that country, or

(ii) for the defence of any other country whose government is party to any agreement or arrangement with Her Majesty's Government in respect of defence matters, or

(b) the supply to the United Nations, or to the government of any country belonging to that organisation, in pursuance of an agreement or arrangement between Her Majesty's Government and that organisation or government, of products required for any armed forces operating in pursuance of a resolution of that organisation or any organ of that organisation,

and the power of a department of the States, Government department or person authorised by any such department under this paragraph to use a design includes power -

(A) to sell to any such government or to the said organisation any products the supply of which is authorised by this subparagraph, and

(B) to sell to any person any products made in the exercise of the powers conferred by this paragraph which are no longer required for the purpose for which they were made.

(7) The purchaser of any products sold in the exercise of powers conferred by this paragraph, and any person claiming through him, may deal with them in the same manner as if the rights in the registered design were held on behalf of the States or (as the case may be) Her Majesty.

(8) In this paragraph "the States" means the States of Guernsey, the States of Alderney or the Chief Pleas of Sark.

Rights of third parties in respect of Crown or States use.

2. (1) In relation to any use of a design registered in the Register of Designs, or a design in respect of which an application for registration in the Register of Designs is pending, made for the services of the Crown or the States -

(a) by a department of the States, Government department or person authorised by such a department under paragraph 1, or

(b) by the person registered in the Register of Designs as proprietor, or the applicant for such registration, to the order of such a department,

the provisions of any licence, assignment or agreement made, whether before or after the commencement of this Ordinance, between the person so registered as proprietor or applicant for such registration or any person who derives title from him or from whom he derives title and any person other than a department of the States and Government department shall be of no effect so far as those provisions restrict or regulate the use of the design, or any model, document or information relating thereto, or provide for the making of payments in respect of any such use, or calculated by reference thereto; and the reproduction or publication of any model or document in connection with the said use shall not be deemed to be an infringement of any copyright or unregistered design right subsisting in the model or document.

(2) Where an exclusive licence granted otherwise than for royalties or other benefits determined by reference to the use of the 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 paragraph and paragraph 1, would constitute an infringement of the rights of the licensee, subparagraph (3) of paragraph 1 shall have effect as if for the reference to the person registered as proprietor in the Register of Designs there were substituted a reference to the licensee, and

(b) in relation to any use of the design by the licensee by virtue of an authority given under paragraph 1, that paragraph shall have effect as if subparagraph (3) thereof were omitted.

(3) Subject to the provisions of subparagraph (2), where the registered design or the right to apply for or obtain registration of the design in the Register of Designs has been assigned to the person registered in the Register of Designs as proprietor in consideration of royalties or other benefits determined by reference to the use of the design, then -

(a) in relation to any use of the design by virtue of paragraph 1, subparagraph (3) of that paragraph shall have effect as if the reference to the person registered in the Register of Designs as proprietor included a reference to the assignor, and any sum payable by virtue of that subparagraph shall be divided between the person so registered as proprietor and the assignor in such proportion as may be agreed between them or as may in default of agreement be determined by the Royal Court on a reference under paragraph 4, and

(b) in relation to any use of the design made for the services of the Crown or the States by the person so registered as proprietor to the order of a department of the States or a Government department, subparagraph (3) of paragraph 1 shall have effect as if that use were made by virtue of an authority given under that paragraph.

(4) Where, under paragraph 1(3), payments are required to be made by a department of the States or a Government department to a person registered in the Register of Designs as 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 subparagraph (2)) authorising him to make use of the design shall be entitled to recover from the person so registered as proprietor such part (if any) of those payments as may be agreed upon between that person and the person so registered as proprietor, or as may in default of agreement be determined by the Royal Court under paragraph 4 to be just having regard to any expenditure incurred by that person -

(a) in developing the design, or

(b) in making payments to the person so registered as proprietor, other than royalties or other payments determined by reference to the use of the design, in consideration of the licence,

and if, at any time before the amount of any such payment has been agreed upon between the department of the States, or Government department, and the person so registered as proprietor, that person gives notice in writing of his interest to the department, any agreement as to the amount of that payment shall be of no effect unless it is made with his consent.

(5) In this paragraph "exclusive licence" means a licence from a person registered in the Register of Designs as proprietor which confers on the licensee, or on the licensee and persons authorised by him, to the exclusion of all other persons (including the person so registered as proprietor), any right in respect of the registered design.

Compensation for lost profit.

3. (1) Where Crown or States use is made of a registered design, the department concerned shall pay -

(a) to the person registered as proprietor in the Register of Designs, or

(b) if there is an exclusive licence in force in respect of the design, to the exclusive licensee,

compensation for any loss resulting from his not being awarded a contract to supply the products to which the design is applied or in which it is incorporated.

(2) Compensation is payable only to the extent that such a contract could have been fulfilled from his existing manufacturing capacity, but is payable notwithstanding the existence of circumstances rendering him ineligible for the award of such a contract.

(3) In determining the loss, regard shall be had to the profit which would have been made on such a contract and to the extent to which any manufacturing capacity was underused.

(4) No compensation is payable in respect of any failure to secure contracts for the supply of products to which the design is applied or in which it is incorporated otherwise than for the services of the Crown or the States.

(5) The amount payable under this paragraph shall, if not agreed between the person registered as proprietor in the Register of Designs, or the licensee, and the department concerned, be determined by the Royal Court on a reference under paragraph 4, and is in addition to any amount payable under paragraph 1 or 2.

(6) In this paragraph -

"Crown or States use", in relation to a design, means the doing of anything by virtue of paragraph 1 which would otherwise be an infringement of the right in the design, and

"department concerned", in relation to such use, means the department of the States or Government department by whom or on whose authority the act was done.

Reference of disputes as to Crown or States use.

4. (1) Any dispute as to -

(a) the exercise by a department of the States or Government department, or a person authorised by any such department, of the powers conferred by paragraph 1,

(b) terms for the use of a design for the services of the Crown or the States under that paragraph,

(d) the right of any person to receive a payment under paragraph 3,

may be referred to the Royal Court by any party to the dispute.

(2) In any proceedings under this paragraph to which a department of the States or Government department is a party, the department may put in issue the validity of the registration of the design in the Register of Designs, whether or not it has applied for its invalidation under this Ordinance.

(3) If, in any proceedings under this paragraph to which a department of the States or Government department is a party, any question arises whether a design has been recorded or applied as mentioned in paragraph 1, and the disclosure of any document recording the design, or of any evidence of the application thereof, would in the opinion of the department be prejudicial to the public interest, the disclosure may be made confidentially to counsel for the other party or to an independent expert mutually agreed upon.

(4) In determining under this paragraph any dispute between a department of the States or Government department and any person as to terms for the use of a design for the services of the Crown or the States, the Royal Court shall have regard to -

(a) any benefit or compensation which that person or any person from whom he derives title has received or is entitled to receive, directly or indirectly, from any department of the States or Government department in respect of the design in question, and

(b) whether that person or a person from whom he derives title has in the Royal Court's opinion without reasonable cause failed to comply with a request of the department of the States or Government department for the use of the design on reasonable terms.

Special provisions as to Crown or States use during emergency.

5. (1) During a period of emergency the powers exercisable in relation to a design by a department of the States, Government department or person authorised by any such department under paragraph 1 include power to use the design for any purpose which appears to the department necessary or expedient -

(a) for the efficient prosecution of any war in which Her Majesty may be engaged,

(b) for the maintenance of supplies and services essential to the life of the community,

(d) for promoting the productivity of industry, commerce, agriculture and fisheries,

(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,

(f) generally for ensuring that the whole resources of the community are available for use, and are used, in a manner best calculated to serve the interests of the community, or

(g) for assisting the relief of suffering and the restoration and distribution of essential supplies and services in any country outside the Bailiwick which is in grave distress as the result of war,

and any reference in this Schedule to the services of the Crown or the States include, as respects a period of emergency, those purposes.

(2) In this paragraph "period of emergency" means a period during which an order made by the Emergency Powers Authority under the Emergency Powers (Bailiwick of Guernsey) Law, 1965[m] declaring a state of emergency to exist remains in force.

[a]	Article XIX of Billet d'État No. XXIII of 2002.
[b]	Order in Council No. XIV of 2004.
[c]	O.R.C. No. VII of 1989.
[d]	Ordres en Conseil Vol. XVIII, p. 315.
[e]	Order in Council Vol. XXIII, p. 573.
[f]	An Act of Parliament (12, 13 and 14 Geo 6 c. 88).
[g]	Ordres en Conseil Vol. XXXI, p. 278.
[h]	Order in Council No. XIV of 2004.
[i]	Ordres en Conseil Vol. XIII, p. 355.
[j]	Ordres en Conseil Vol. VII, p. 1.
[k]	An Act of Parliament (57 & 58 Vict. c. 60).
[l]	Ordres en Conseil Vol. XXIV, p. 87.
[m]	Ordres en Conseil Vol. XX, p. 6; amended by Vol. XXXI, p. 154; No. XIV of 2001; No. VII of 2005; and by the Machinery of Government (Transfer of Functions) (Guernsey) Ordinance, 2003 (No. XXXIII of 2003).