Hong Kong Ordinances

REGISTERED DESIGNS ORDINANCE - SECT 40

References of disputes to court

(1) Any dispute as to-

   (a)  the exercise by a public officer, or a person authorized by a public
        officer, of the powers conferred by section 37;

   (b)  terms for Government use of a registered design under section  37 ;

   (c)  the payment, if any, which should be made to the registered  owner
        under section 37(4);

   (d)  the right of any person to receive any part of a payment made under
        section 37(4);

   (e)  the right of any person to receive compensation under section  39 ; or

   (f)  the amount of compensation payable to any person under section  39 ,
        may be referred to the court by either party to the dispute.

(2) In determining under this section any dispute between the Government and
any person as to the terms for the Government use of a registered design, the
court shall have regard-

   (a)  to any benefit or compensation which that person or any person from
        whom he derives title may have received or may be entitled to receive
        directly or indirectly from any public officer in respect of the
        design in question; and

   (b)  to whether that person or any person from whom he derives title has,
        in the court's opinion, without reasonable cause, failed to comply
        with a request of the public officer concerned for Government use of
        the design on reasonable terms.

(3) On a reference under this section the court may refuse to grant relief by
way of compensation in respect of Government use of a registered  design at
any time during the period referred to in section 28(5) but before the fees
referred to in that section are paid.

(4) Where a person becomes the registered owner or one of the
registered owners or an exclusive licensee of a registered design (the new
owner or licensee) by virtue of a transaction, instrument or event to which
section 34 applies, then unless-

   (a)  an application to register the prescribed particulars of the
        transaction, instrument or event is made before the end of the period
        of 6 months from the date of the transaction, instrument or event; or

   (b)  the court is satisfied that it was not practicable for such an
        application to be made before the end of that period and that an
        application was made as soon as practicable thereafter, the new owner
        or licensee shall not be entitled to any compensation under section 37
        (as it stands or as modified by section 38(4)) or to any compensation
        under section 39 in respect of any use of the design by a public
        officer or a person authorized by a public officer under section 37
        after the date of the transaction, instrument or event and before the
        prescribed particulars of the transaction, instrument or event are
        registered.

(5) One of 2 or more registered owners of a registered design may without the
concurrence of the others refer a dispute to the court under this section, but
shall not do so unless the others are made parties to the proceedings; but any
of the others made a defendant shall not be liable for any costs or expenses
unless he takes part in the proceedings.