Intellectual
Property Rights
Designs Act 2000
CHAPTER VIII : EVIDENCE, ETC.
37. Evidence before the Controller
Subject
to any rules made under section 44, in any proceeding under this Act before
the Controller, the evidence shall be given by affidavit in the absence
of directions by the Controller to the contrary; but in any case in which
the Controller thinks it right so to do he may take evidence viva voce
in lieu of or in addition to evidence by affidavit or may allow any party
to be cross-examined on the contents of his affidavit.
38. Certificate of Controller to be evidence
A certificate
purporting to be under the hand of the Controller as to any entry, matter
or thing which he is authorized by this Act, or any rules made thereunder
to make or do, shall be prima facie evidence of the entry having been
made, and of the contents be thereof, and of the matter or thing having
been done or left undone.
39. Evidence of documents in patent office
Printed
or written copies or extracts, purporting to be certified by the Controller
and sealed with the seal of the patent office, of documents in the patent
office, and of or from registers and other books kept there, shall be
admitted in evidence in all courts in India, and in all proceedings, without
further proof or production of the originals:
Provided
that a court may, if it has reason to doubt the accuracy or authenticity
of the copies tendered in evidence, require the production of the originals
or such further proof as it considers necessary.
40. Application and notices by post
Any application,
notice or other document authorized or required to be left, made or given
at the patent office or to the Controller, or to any other person under
this Act, may be sent by post.
41. Declaration by infant, lunatic, etc
(1) If
any person, is by reason of infancy, lunacy or other disability, incapable
of making any statement or doing anything required or permitted by or
under this Act, the lawful guardian, committee or manager (if any) of
the person subject to the disability, or, if there be none, any person
appointed by any court possessing jurisdiction in respect of his property",
may make such statement or a statement as nearly corresponding thereto
as circumstances permit, and do such thing in the name and on behalf of
the person subject to the disability.
(2) An
appointment may be made by the court for the purposes of this section
upon the petition of any person acting on behalf of the person subject
to the disability or of any other person interested in the making of the
statement or the doing of the thing.
42. Avoidance of certain restrictive conditions
(1) It
shall not be lawful to insert-
(i) in
any contract for or in relation to the sale or lease of an article in
respect of which a design is registered; or
(ii) in
a licence to manufacture or use an article in respect of which a design
is registered; or
(iii)
in a licence to package the article in respect of which a design is registered,
condition
the effect of which may be-
(a) to
require the purchaser, lessee, or licensee to acquire from the vendor,
lessor, or licensor or his nominees, or to prohibit him from acquiring
or to restrict in any manner or to any extent his right to acquire from
any person or to prohibit him from acquiring except from the vendor, lessor,
or licensor or his nominees any article other than the article in respect
of which a design is registered; or
(b) to
prohibit the purchaser, lessee or licensee from using or to restrict in
any manner or to any extent the right of the purchaser, lessee or licensee,
to use an article other than the article in respect of which a design
is registered which is not supplied by the vendor, lessor or licensor
or his nominee,
and any
such condition shall be void.
(2) A
condition of the nature referred to in clause (a) or clause (b) of sub-section
(1) shall not cease to be a condition falling within that sub-section
merely by reason of the fact that the agreement containing it has been
entered into separately, whether before or after the contract relating
to the sale, lease or licence of the article in respect of which a design
is registered.
(3) In
proceeding against any person for any act in contravention of section
22, it shall be a defence to prove that at the time of such contravention
there was in force a contract relating to the registered design and containing
a condition declared unlawful by this section:
Provided
that this sub-section shall not apply if the plaintiff is not a party
to the contract and proves to the satisfaction of the court that the restrictive
condition was inserted in the contract without his knowledge and consent,
express or implied.
(4) Nothing
in this section shall-
(a) affect
a condition in a contract by which a person is prohibited from selling
goods other than those of a particular person;
(b) validate
a contract which, but for this section, would be invalid;
(c) affect
a condition in a contract for the lease of, or licence to use, an article
in respect of which a design is registered, by which the lessor or licensor
reserves to himself or his nominee the right to supply such new parts
of the article, in respect of which a design is registered, as may be
required or to put or keep it in repair.
(5) The
provision of this section shall also apply to contracts made before the
commencement of this Act if, and in so far as, any restrictive conditions
declared unlawful by this section continue in force after the expiration
of one year from such commencement.
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