Search Legislation

Copyright, Designs and Patents Act 1988

 Help about what version

What Version

 Help about advanced features

Advanced Features

Changes over time for: Cross Heading: Remedies for infringement

 Help about opening options

Changes to legislation:

There are currently no known outstanding effects for the Copyright, Designs and Patents Act 1988, Cross Heading: Remedies for infringement. Help about Changes to Legislation

Close

Changes to Legislation

Revised legislation carried on this site may not be fully up to date. At the current time any known changes or effects made by subsequent legislation have been applied to the text of the legislation you are viewing by the editorial team. Please see ‘Frequently Asked Questions’ for details regarding the timescales for which new effects are identified and recorded on this site.

Remedies for infringementU.K.

229 Rights and remedies of design right owner.U.K.

(1)An infringement of design right is actionable by the design right owner.

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

(3)The court may in an action for infringement of design 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 section has effect subject to section 233 (innocent infringement).

230 Order for delivery up.U.K.

(1)Where a person—

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

(b)has in his possession, custody or control anything specifically designed or adapted for making articles to a particular design, knowing or having reason to believe that it has been or is to be used to make an infringing article,

the owner of the design right in the design in question may apply to the court for an order that the infringing article or other thing be delivered up to him or to such 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 section; 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 section 231 (order as to disposal of infringing article, &c.).

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

(4)If during the whole or any part of that period the design right owner—

(a)is under a 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 the period of six years from the date on which he ceased to be under a disability or, as the case may be, could with reasonable diligence have discovered those facts.

(5)In subsection (4) “disability”—

(a)in England and Wales, has the same meaning as in the M1Limitation Act 1980;

(b)in Scotland, means legal disability within the meaning of the M2Prescription and Limitation (Scotland) Act 1973;

(c)in Northern Ireland, has the same meaning as in the M3Statute of Limitations (Northern Ireland) 1958.

(6)A person to whom an infringing article or other thing is delivered up in pursuance of an order under this section shall, if an order under section 231 is not made, retain it pending the making of an order, or the decision not to make an order, under that section.

(7)Nothing in this section affects any other power of the court.

Modifications etc. (not altering text)

C1S. 230 extended by S.I.1991/724, art. 2(1)(n)

Marginal Citations

231 Order as to disposal of infringing articles, &c.U.K.

(1)An application may be made to the court for an order that an infringing article or other thing delivered up in pursuance of an order under section 230 shall be—

(a)forfeited to the design right owner, or

(b)destroyed or otherwise dealt with as the court may think fit,

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

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

(3)Provision shall be made by rules of court as to the service of notice on persons having an interest in the article or other thing, and any such person is entitled—

(a)to appear in proceedings for an order under this section, whether or not he was served with notice, and

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

and an order shall not take effect until the end of the period within which notice of an appeal may be given or, if before the end of that period notice of appeal is duly given, until the final determination or abandonment of the proceedings on the appeal.

(4)Where there is more than one person interested in an article or other thing, the 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.

(5)If the court decides that no order should be made under this section, the person in whose possession, custody or control the article or other thing was before being delivered up F1. . . is entitled to its return.

(6)References in this section to a person having an interest in an article or other thing include any person in whose favour an order could be made in respect of it

[F2(a)under this section or under section 114 or 204 of this Act;

(b)under section 24D of the Registered Designs Act 1949;

(c)under section 19 of Trade Marks Act 1994 F3...; or

(d)under regulation 1C of the Community Design Regulations 2005 (SI 2005/2339).]

Textual Amendments

F3Words in s. 231(6)(c) omitted (31.12.2020) by virtue of The Trade Marks (Amendment etc.) (EU Exit) Regulations 2019 (S.I. 2019/269), reg. 1(1), Sch. 5 para. 2; 2020 c. 1, Sch. 5 para. 1(1)

Modifications etc. (not altering text)

C2S. 231 extended by S.I. 1991/724, art. 2(1)(n)

232 Jurisdiction of county court and sheriff court.U.K.

(1)In England [F4and Wales the county court and in] Northern Ireland a county court may entertain proceedings under—

  • section 230 (order for delivery up of infringing article, &c.),

  • section 231 (order as to disposal of infringing article, &c.), or

  • section 235(5) (application by exclusive licensee having concurrent rights),

[F5save that, in Northern Ireland, a county court may entertain such proceedings only] where the value of the infringing articles and other things in question does not exceed the county court limit for actions in tort.

(2)In Scotland proceedings for an order under any of those provisions may be brought in the sheriff court.

(3)Nothing in this section shall be construed as affecting the jurisdiction of the High Court or, in Scotland, the Court of Session.

Textual Amendments

F4Words in s. 232(1) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9 para. 72; S.I. 2014/954, art. 2(c) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)

F5Words in s. 232(1) inserted by S.I. 1991/724, art. 2(8), Schedule Part I

233 Innocent infringement.U.K.

(1)Where in an action for infringement of design right brought by virtue of section 226 (primary infringement) it is shown that at the time of the infringement the defendant did not know, and had no reason to believe, that design right subsisted in the design to which the action relates, the plaintiff is not entitled to damages against him, but without prejudice to any other remedy.

(2)Where in an action for infringement of design right brought by virtue of section 227 (secondary infringement) a defendant shows that the infringing article was innocently acquired by him or a predecessor in title of his, the only remedy available against him in respect of the infringement is damages not exceeding a reasonable royalty in respect of the act complained of.

(3)In subsection (2) “innocently acquired” means that the person acquiring the article did not know and had no reason to believe that it was an infringing article.

234 Rights and remedies of exclusive licensee.U.K.

(1)An exclusive licensee has, except against the design right owner, 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 design right owner; and references in the relevant provisions of this Part to the design right owner shall be construed accordingly.

(3)In an action brought by an exclusive licensee by virtue of this section a defendant may avail himself of any defence which would have been available to him if the action had been brought by the design right owner.

235 Exercise of concurrent rights.U.K.

(1)Where an action for infringement of design right brought by the design right owner or an exclusive licensee relates (wholly or partly) to an infringement in respect of which they have concurrent rights of action, the design right owner 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 design right owner or exclusive licensee who is added as a defendant in pursuance of subsection (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 design right owner or an exclusive licensee.

(4)Where an action for infringement of design right is brought which relates (wholly or partly) to an infringement in respect of which the design right owner 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 design right owner and the exclusive licensee are both parties to the action.

(5)The design right owner shall notify any exclusive licensee having concurrent rights before applying for an order under section 230 (order for delivery up of infringing article, &c.); and the court may on the application of the licensee make such order under that section as it thinks fit having regard to the terms of the licence.

Modifications etc. (not altering text)

C3S. 235(5) extended by S.I. 1991/724, art. 2(1)(n)

Back to top

Options/Help

Print Options

You have chosen to open The Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open The Whole Act as a PDF

The Whole Act you have selected contains over 200 provisions and might take some time to download.

Would you like to continue?

You have chosen to open The Whole Act without Schedules

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open The Whole Act without Schedules as a PDF

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download.

Would you like to continue?

You have chosen to open the Whole Act

The Whole Act you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open the Whole Act without Schedules

The Whole Act without Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

You have chosen to open Schedules only

The Schedules you have selected contains over 200 provisions and might take some time to download. You may also experience some issues with your browser, such as an alert box that a script is taking a long time to run.

Would you like to continue?

Close

Legislation is available in different versions:

Latest Available (revised):The latest available updated version of the legislation incorporating changes made by subsequent legislation and applied by our editorial team. Changes we have not yet applied to the text, can be found in the ‘Changes to Legislation’ area.

Original (As Enacted or Made): The original version of the legislation as it stood when it was enacted or made. No changes have been applied to the text.

Close

See additional information alongside the content

Geographical Extent: Indicates the geographical area that this provision applies to. For further information see ‘Frequently Asked Questions’.

Show Timeline of Changes: See how this legislation has or could change over time. Turning this feature on will show extra navigation options to go to these specific points in time. Return to the latest available version by using the controls above in the What Version box.

Close

Opening Options

Different options to open legislation in order to view more content on screen at once

Close

More Resources

Access essential accompanying documents and information for this legislation item from this tab. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • correction slips
  • links to related legislation and further information resources
Close

Timeline of Changes

This timeline shows the different points in time where a change occurred. The dates will coincide with the earliest date on which the change (e.g an insertion, a repeal or a substitution) that was applied came into force. The first date in the timeline will usually be the earliest date when the provision came into force. In some cases the first date is 01/02/1991 (or for Northern Ireland legislation 01/01/2006). This date is our basedate. No versions before this date are available. For further information see the Editorial Practice Guide and Glossary under Help.

Close

More Resources

Use this menu to access essential accompanying documents and information for this legislation item. Dependent on the legislation item being viewed this may include:

  • the original print PDF of the as enacted version that was used for the print copy
  • correction slips

Click 'View More' or select 'More Resources' tab for additional information including:

  • lists of changes made by and/or affecting this legislation item
  • confers power and blanket amendment details
  • all formats of all associated documents
  • links to related legislation and further information resources