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2003 South Pacific Games (Indicia and Images) Protection Act 2002

FIJI ISLANDS

2003 SOUTH PACIFIC GAMES (INDICIA AND IMAGES) PROTECTION ACT 2002

ARRANGEMENT OF SECTIONS

PART 1 PRELIMINARY

1. Short title
2. Interpretation
3. Objects of this Act
4. Application of this Act
5. 2003 South Pacific Games indicia
6. 2003 South Pacific Games images
7. Application of Suva 2003 Games indicia and images
8. Use for commercial purposes
   

PART 2 PROTECTION, LICENSING AND REGISTRATION

9. Use of Suva 2003 Games indicia and images
10. Power to issue licence
11. Registration of licensees
12. Register of licensees
13. Entries in register
14. Request for certified copies of entry in register
15. Effect and evidence of entry in register
16. Copy of register to be given to Permanent Secretary
17. Copy of register to be available for inspection
18. Public access to copy of register
19. Use of indicia and images for information, etc
    

PART 3 IMPORTATION OF GOODS AND LEGAL REMEDIES

20. Definition
21. Consent of SPGOC 2003 to give notices, etc
22. Request for consent
23. Consent must not be unreasonably refused
24. Director to be supplied with copy of register
25. Notice of goods imported by SPGOC 2003
26. Notice of objection to importation
27. Director may seize goods
28. Notice of seizure
29. Forfeiture of goods by consent
30. Release of goods no application for injunction
31. Application for injunction additional parties, etc
32. Disposal of forfeited goods
33. Power of Director to retain control of goods
34. Government not liable for loss, etc
35. Injunctions
36. Interim injunctions
37. Damages
38. Other remedies
39. Corrective advertisements
40. Groundless threats of legal proceedings
41. Counterclaims in actions on groundless threats
    

PART 4 MISCELLANEOUS

42. Intellectual property legislation
43. Regulations
44. Expiration of this Act
45. Transitional
    

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ACT NO. 16 of 2002

I assent

[L.S.]

J.I. ULUIVUDA
President

[24 June 2002]

AN ACT

TO REGULATE AND CONTROL THE USE FOR COMMERCIAL PURPOSES OF THE SUVA 2003 GAMES AND THE 2003 SOUTH PACIFIC GAMES INDICIA AND IMAGES ASSOCIATED WITH THE 2003 SOUTH PACIFIC GAMES AND FOR RELATED MATTERS

ENACTED by the Parliament of the Fiji Islands

PART 1
PRELIMINARY

Short title

1. This Act may be cited as the 2003 South Pacific Games (Indicia and Images) Protection Act 2002.

Interpretation

2. In this Act, unless the context otherwise requires-

"2003 South Pacific Games" means the South Pacific Games in Suva in the year 2003;

"broadcast" means a transmission by means of a broadcasting service, including television broadcasting;

"FASANOC" means the Fiji Association of Sports and National Olympic Committee;

"licence" means a licence issued under section 10;

"licensee" means a person licensed under section 10;

"Permanent Secretary" means the Permanent Secretary responsible for Sports;

"register" means the register established and maintained under section 12;

"SPGOC 2003" means the South Pacific Games Organising Committee whether or not incorporated, responsible for organising the Twelfth South Pacific Games 2003, constituted by the FASANOC;

"Suva 2003 Games" means the 2003 South Pacific Games;

"Suva 2003 Games images" means-

(a) common Suva 2003 Games images; and

(b) 2003 South Pacific Games images, defined in section 6;

"Suva 2003 Games indicia" means-

(a) the common Suva 2003 Games indicia; and

(b) the 2003 South Pacific Games indicia,

defined in section 5;

"working day", in relation to the period within which an act is to be, or may be, done, means Monday, Tuesday, Wednesday, Thursday or Friday except Saturday, Sunday or a public holiday declared under the Public Holidays Act (Cap. 101).

(2) In this Act, a reference to commercial purpose is taken as if such reference were a reference to use for commercial purpose by-

(a) a foreign or local company (including a financial institution within the meaning of the Banking Act 1995);

(b) any person for trade or commerce with any other country or within the Fiji Islands;

(c) any person for the use of postal, telegraphic or telephonic, internet services or other similar services;

(d) any person for making a broadcast;

(e) any person that detrimentally affects the rights conferred under this Act to the SPGOC or a licensee.

Objects of this Act

3. (1) The objects of this Act are-

(a) to protect and further the position of the Fiji Islands as a participant in, and a supporter of, the South Pacific Games; and

(b) to assist in protecting the relations, and in ensuring the performance of the obligations, of the South Pacific Games bodies with and to the South Pacific Games Council,

in relation to the holding of the 2003 South Pacific Games.

(2) The objects set out in subsection (1) are to be achieved by facilitating the raising of licensing revenue in relation to the 2003 South Pacific Games through the regulation of the use for commercial purposes of the indicia and images associated with the 2003 South Pacific Games.

(3) In subsection (1)(b) South Pacific Games bodies refers to-

(a) the SPGOC 2003;

(b) the FASANOC;

(c) the City of Suva; and

(d) the Government of the Fiji Islands.

Application of this Act

4. (1) This Act binds the Government of the Republic of the Fiji Islands.

(2) This Act extends to any vessel in the territorial waters of or any aircraft in airspace above the Fiji Islands.

(3) In this section, territorial waters means all internal waters, archipelagic waters, territorial seas and all waters within the exclusive economic zone as defined in the Marine Spaces Act (Cap. 158A).

2003 South Pacific Games indicia

5. (1) In this Act, a reference to the common Suva 2003 Games indicia means any word, term, phrase or number or a combination of words, terms, phrases or numbers set out in column 1 of the Schedule.

(2) In this Act, a reference to the 2003 South Pacific Games indicia means any word, term, phrase or number or a combination of words, terms, phrases or numbers set out in column 2 of the Schedule.

(3) This section covers any Suva 2003 Games indicia that are represented in any language or other forms of human expression.

2003 South Pacific Games Images

6. (1) In this Act, a reference to the common Suva 2003 Games images means any visual or aural representations that, to a reasonable person, in the circumstances of the presentation, would suggest or imply a connection with the 2003 South Pacific Games.

(2) In this Act, a reference to the 2003 South Pacific Games images means any visual or aural representations that, to a reasonable person, in the circumstances of the presentation, would suggest or imply a connection with the 2003 South Pacific Games.

Application of Suva 2003 Games indicia and images

7. (1) The Suva 2003 Games indicia and images are taken to be applied to any goods or services, whether made or provided locally or imported, if-

(a) in the case of goods, the indicia or images-

(i) are woven in, impressed on, worked into, or affixed or annexed to, the goods; or

(ii) are applied to any covering, document, label, reel or thing in or with which the goods are, or are intended to be, dealt with or provided in the course of trade; or

(b) in the case of goods and services, the indicia or images

(i) are used on a signboard or in an advertisement on any commercial or private property, television, newspaper, radio advertisement or other similar medium that promotes the goods or services; or

(ii) are used in an invoice, price list, catalogue, brochure, business letter, business paper or other commercial document that relates to the goods or services.

(2) If-

(a) goods are imported for the purposes of sale or distribution by a person; and

(b) when imported, the goods have already had applied to them the Suva 2003 Games indicia or images,

the person is to be taken to have applied the indicia or images to the goods, for the purposes of Part 3 on importation and legal remedies.

(3) In subsection (1)(a)(ii)-

"covering" includes any packaging, frame, wrapper, container, stopper, lid or cap or other similar matter;

"label" includes a band or ticket.

Use for commercial purposes

8. (1) A person is taken to use the Suva 2003 Games indicia and images for commercial purposes if-

(a) the person applies the indicia or images to goods and services of the person;

(b) the application of such images and indicia is for advertising or promotional purposes or such application is likely to enhance the demand for the goods or services; and

(c) the application, to a reasonable person, would suggest that the first-mentioned person is or was a sponsor of, or is or was the provider of other support for-

(i) the 2003 South Pacific Games; or

(ii) any event arranged by the SPGOC 2003, the FASANOC or the South Pacific Games Council in connection with the 2003 South Pacific Games.

(2) This section applies to any other person (other than the person mentioned in subsection (1)) who supplies, offer, expose or keep, as the case may be, if that other person or another person-

(a) in the case of goods or services supplies or offer to supply the goods or services;

(b) in the case of goods exposes the goods for sale;

(c) in the case of goods keeps the goods for supply by that other person or by another person.

(3) In this section-

"supply" includes re-supply by way of sale, exchange, lease, hire or hire-purchase;

"services" includes provide, grant or confer.

PART 2
PROTECTION, LICENSING AND REGISTRATION

Use of Suva 2003 Games indicia and images

9. (1) This section vests the rights to the SPGOC 2003 to use for commercial purposes the following Suva 2003 Games indicia and images for commercial purposes-

(a) common Suva 2003 Games indicia;

(b) 2003 South Pacific Games indicia;

(c) common Suva 2003 Games images;

(d) 2003 South Pacific Games images,

as the result of the rights of the Fiji Islands to host the 2003 South Pacific Games by virtue of the South Pacific Games Charter.

(2) No person may use the Suva 2003 Games indicia and images for commercial purposes except the SPGOC 2003 or a licensee.

(3) The SPGOC 2003 may use for commercial purposes the following Suva 2003 Games indicia and images-

(a) common Suva 2003 Games indicia;

(b) 2003 South Pacific Games indicia;

(c) common Suva 2003 Games images;

(d) 2003 South Pacific Games images.

(4) A licensee may use the Suva 2003 Games indicia and images for commercial purposes in accordance with extent of usage authorised in the licence.

(5) For the purposes of subsection (1), the use of indicia so closely resembling the Suva 2003 Games indicia, which is likely to be mistaken, by a reasonable person, for the Suva 2003 Games indicia is to be taken to be a use of the Suva 2003 Games indicia for such purposes.

Power to issue licence

10. (1) The SPGOC 2003 may issue a licence to a person authorising such person to use any or all of the following Suva 2003 Games indicia and images for general or specific commercial purposes-

(a) common Suva 2003 Games indicia;

(b) 2003 South Pacific Games indicia;

(c) common Suva 2003 Games images;

(d) 2003 South Pacific Games images;

for a specified time or until this Act expires by virtue of section 44.

(2) The power to issue licence includes the power to amend, vary, suspend, or cancel the licence.

(3) The SPGOC 2003 may issue a licence subject to terms and conditions it thinks fit to impose including the fees or other charges to be paid in respect of the licence and the duration of the licence.

Registration of licensees

11. (1) The SPGOC 2003 must, as soon as a person is issued with a licence, register the name of the person in the register maintained under section 12.

(2) A licence is effective from the date the licence is entered in the register.

Register of licensees

12. (1) The SPGOC 2003 must establish and maintain a register containing the details set out in section 13.

(2) The register must-

(a) be kept by the SPGOC 2003 at the principle place of business of the SPGOC 2003; and

(b) be open for inspection by any person without charge during the normal business hours of the SPGOC 2003.

(3) If the register is kept in a computer, subsection (2)(b) is satisfied-

(a) by arranging for inspection of a written copy of the particulars in the register, or

(b) by providing for access to a computer terminal from which the particulars in the register can be read.

(4) The SPGOC 2003 must, upon request by a person and payment of any prescribed fee, provide the person a copy of the register or part of it within 5 working days.

(5) If the register is kept in a computer and a person requests for a copy of the register on a floppy disk, the SPGOC 2003 may provide the copy of the register on a floppy disk formatted in the computer operating system used by the SPGOC 2003.

Entries in register

13. (1) An entry in the register must contain the following particulars of a licensee-

(a) the licensees name and principal place of business;

(b) the types of Suva 2003 Games indicia and images the licensee is authorised to use for commercial purposes including the circumstances and extent in which the indicia and images may be used;

(c) if the licence is for a specific time the duration of the licence and expiry date;

(d) the date the entry is made;

(e) any other prescribed matter.

(2) If a licence is revoked, the SPGOC 2003 must enter the details of the revocation including the effective date of revocation in the register.

Request for certified copy of entry in register

14. (1) If a person requests a certified copy of a matter entered or particulars in the register, the SPGOC 2003 must, within 5 working days, provide the person-

(a) if the register is kept in a computer a document certified to be a reproduction in writing of the particulars of the entries contained in the register; or

(b) in any other case a document certified to be the copy of the particulars in the register.

(2) If the person requesting for a matter entered or particulars in the register is not the licensee to whom the entry relates, the person must pay any fee specified by the SPGOC 2003.

(3) The Chief Executive Officer of the SPGOC 2003 or a person authorised in writing by the Chief Executive Officer are authorised to certify documents or particulars of entries required under subsection (1).

Effect and evidence of entry in register

15. (1) Subject to subsections (2) and (3), a person whose name appears in an entry in the register as a licensee is to be taken to be the licensee, for the purposes of this Act, in respect of the Suva 2003 Games indicia and images specified in the entry.

(2) If an entry includes a date specified for the purposes of section 13(1)(c), the person in such entry is to be taken to be, or to have been, a licensee until that date.

(3) If an entry includes the details of revocation made under subsection 13(2), the person in such entry is to be taken to be or to have been a licensee until the date specified in the entry as the effective date of the revocation.

(4) A document certified under section 14, which is a reproduction in writing or a copy of the particulars contained in an entry in the register is evidence of the particulars entered in the register.

Copy of register to be given to Permanent Secretary

16. (1) The SPGOC 2003 must provide the Permanent Secretary a copy of-

(a) the register as soon as practicable after the commencement of this Act;

(b) any entry subsequently made in the register as soon as practicable after the entry is made.

(2) If the register is kept in a computer, the SPGOC 2003 may, with the approval of the Permanent Secretary, provide the copy of the register or the copy of any subsequent entry in the register on a floppy disk.

Copy of register to be available for inspection

17. (1) The Permanent Secretary must, as soon as practicable after receiving a copy of the register, arrange for the copy of the register to be available for inspection in an office located in Suva or other places approved by the Permanent Secretary.

(2) The Permanent Secretary must, as soon as practicable after receiving a copy of the any subsequent entry in the register, update the copy of the register.

Public access to copy of register

18. (1) A person may, without payment of fees, inspect the copy of register kept under section 17 during the normal business hours.

(2) The Permanent Secretary must inform the person inspecting the register kept under section 17 whether or not the copies of the register have been updated at the date of inspection.

(3) If the copy of register is kept in a computer, subsection (1) is satisfied-

(a) by inspecting the particulars in a printed copy of the register; or

(b) by accessing and reading particulars of the copy of the register in a computer terminal.

(4) The Permanent Secretary must, upon request by a person and upon payment of any prescribed fee, provide the person a copy of the register or part of it kept under section 17 within 5 working days.

(5) If the copy of the register is kept in a computer, the Permanent Secretary may provide a copy of the register on a floppy disk formatted on the computer system kept by the Permanent Secretary.

Use of indicia and images for information, etc

19. (1) The use of the Suva 2003 Games indicia and images for the purpose of providing information, criticism or review is not alone sufficient to suggest a sponsorship or the provision of other support for the purposes of section 8(c).

(2) In subsection (1)-

(a) a reference to the provision of information includes a reference to the reporting of news or the presentation of current affairs; and

(b) a reference to criticism or review includes a reference to criticism or review in a-

(i) newspaper, magazine or similar periodical; or

(ii) broadcast; or

(iii) cinematograph film.

PART 3
IMPORTATION OF GOODS AND LEGAL REMEDIES

Definition

20. In this Part, unless the context otherwise requires-

"Director" means the Director General of Customs;

"objector", in relation to seized goods, means the SPGOC 2003 or a licensee in relation to a valid notice given under section 26;

"owner", in relation to imported goods, means the person identified as the owner of goods shown in the records kept by the Customs as required by the Customs Act 1986;

"period", in relation to seized goods, means-

(a) if there is only one objector to the importation of the goods the period specified in the notice given under section 28 including any period extended under subsection 28(4); or

(b) if there is more than one objector to the importation of the goods the period beginning on the earliest day on which a period specified in a notice given to an objector under section 28 commences and expires-

(i) on the last day on which the specified period expires; or

(ii) on the day on which such a period as extended under section 28(4) expires,

whichever is the later;

"seized goods" means any goods seized under section 27.

Consent of SPGOC 2003 to giving of notices, etc

21. No licensee may-

(a) give a notice of objection to importation under section 26;

(b) take application for an injunction under section 35; or

(c) bring an action for damages under section 37,

except with the written consent of the SPGOC 2003.

Request for consent

22. If-

(a) a licensee gives the SPGOC 2003 a written request for consent under section 21; and

(b) the SPGOC 2003 neither gives nor refuses that consent before the end of the working day following the day on which the request was given;

the SPGOC 2003 is to be taken to have given the consent.

Consent must not be unreasonably refused

23. The consent under section 21 must not be reasonably refused.

Director to be supplied copy of register

24. (1) The SPGOC 2003 must provide the Director a copy of-

(a) the register as soon as practicable after the commencement of this Act; and

(b) any entry made in the register as soon as practicable after the entry is made.

(2) If the register is kept in a computer, the SPGOC 2003 may, with approval of the Director, provide the Director a copy of the register or of any subsequent entry in the register on a floppy disk.

Notice of goods imported by SPGOC 2003

25. If-

(a) goods are to be imported by or on behalf of the SPGOC 2003; and

(b) any Suva 2003 Games indicia and images specified in section 9(3) have been applied to the goods,

the SPGOC 2003 must, in writing, notify the Director specifying the indicia and images supplied and setting out the particulars to enable the Director to identify the goods.

Notice of objection to importation

26. (1) The SPGOC 2003 or a licensee may, in writing, notify the Director of any objection to the importation of any goods that the Suva 2003 Games indicia and images have been applied to such goods and imported by a person other than the SPGOC 2003 or a licensee.

(2) A notice under this section is to be given together with any other prescribed document and accompanied by any prescribed fee.

(3) A notice under this section by the SPGOC 2003 must relate to the following Suva 2003 Games indicia and images-

(a) Common Suva 2003 Games indicia;

(b) 2003 South Pacific Games indicia;

(c) Common Suva 2003 Games images;

(d) 2003 South Pacific Games images.

(4) A licensee may only give a notice under this section in relation to the Suva 2003 Games indicia and images, which the licensee is authorised to use under the licence.

(5) The SPGOC 2003 or a licensee may, by written notice to the Director, revoke the notice given under this section.

(6) Subject to subsection (5), a notice under this section expires-

(a) in the case of the SPGOC 2003 when this Act is repealed or expires by virtue of section 44; or

(b) in the case of a licensee if the licence is for a specified time, on the expiry date of the licence or when this Act is repealed or expires by virtue of section 44, whichever is the earlier.

Director may seize goods

27. (1) This section applies to imported goods manufactured outside the Fiji Islands that are subject to the control of the Customs under the Customs Act 1986.

(2) If-

(a) the Suva 2003 Games indicia or images have been applied to any imported goods;

(b) a valid notice under section 26 has been lodged with the Director; and

(c) it appears to the Director that the owner is not authorised or licensed under this Act to use the indicia or images for commercial use in relation to the imported goods,

the Director may seize the imported goods unless the Director has reasonable grounds for believing that section 9 would not be contravened by the application of such indicia or images to the imported goods for commercial purposes.

(3) The Director may refuse to seize the goods unless the objector provides security in an amount that the Director considers sufficient to cover reasonable expenses that may be incurred by the Customs if the goods were seized.

(4) If security provided under subsection (2) is insufficient, the difference in the amount between the actual expenses incurred and security provided is a debt due by any objector or the objectors jointly and severally to the Customs.

(5) Goods seized under this section must be kept in a secure place as directed by the Director.

Notice of seizure

28.- (1) As soon as practicable after goods are seized under section 27, the Director must give the owner of the goods and any objector a written notice to be served personally or by post identifying the goods and stating that they have been seized under section 27.

(2) A notice to an objector under subsection (1) must state-

(a) the full name and address of the owner of the goods;

(b) any information that the Director has or believes on reasonable grounds, that is likely to help the objector to identify the owner; and

(c) that the goods will be released to the owner unless-

(i) an application for an injunction under section 35 in relation to the goods is made by the objector within the period of 10 working days from the date specified in the notice; and

(ii) a written notice of any application made under section 35 is given to the Director within period set out in subparagraph (i).

(3) The date specified in the notice under subsection (2)(c)(i) must not be earlier than the date on which the notice is given.

(4) The Director may, upon request in writing by any objector and before a notice under subsection (2)(c)(i) expires, extend the period up to 10 working days.

Forfeiture of goods by consent

29. (1) The owner of any seized goods may, by written notice to the Director and before an objector makes an application under section 35, consent to the goods being forfeited to the State.

(2) If the owner gives notice under this section, the goods are forfeited to the State and must be disposed of as the Director directs.

Release of goods no application for injunction

30. (1) The Director must release the seized goods (not being goods forfeited to the State under section 29) to the owner at the end of the application period unless, within that period, any objector has-

(a) made an application under section 35 in relation to the goods; and

(b) provided a written notice of such application to the Director.

(2) The Director must also release the seized goods to the owner, if before the end of the application period any objector has given consent in writing to the Director to the release of the goods.

(3) The Director may release the seized goods to the owner before the end of the application period, if-

(a) the Director, having regard to information that has come to his or her knowledge after the goods were seized, does not have reasonable grounds for believing that section 9 would be contravened by the importation of the goods; and

(b) no objector has made an application under section 35 in relation to the goods.

Application for injunction additional parties, relief etc.

31. (1) In this section, a reference to an application under section 35 is a reference to such an application made, in relation to any seized goods by a person who is an objector in relation to the goods.

(2) In a pending application for an injunction under section 35, the court may allow -

(a) on the application by a person having a sufficient interest in the subject-matter of the application the person to be joined as a party; and

(b) the Director to appear and be heard.

(3) In addition to any relief that the court may grant apart from this section, the court may-

(a) order that the seized goods be released to the owner subject to any conditions the court may impose; or

(b) order that the seized goods be forfeited to the State.

(4) If-

(a) the court decides that an injunction should not be granted under section 35; and

(b) the owner of the goods or any other respondent, satisfies the court that the owner or respondent has suffered loss or damage because of the seizure of goods;

(c) the court may order the objector to pay to the owner or other respondent compensation, in the amount determined by the court, for any loss or damage that is attributable to any period beginning on or after the date on which the application under section 35 was made.

(5) If, at the end of 21 days commencing on the day on which the application for an injunction under section 35 was made, there is no court order preventing the goods to be released, the Director must release the goods to the owner.

(6) If the court orders the release of the goods, the Director must, subject to section 33, comply with the order.

Disposal of forfeited goods

32. If the court orders under section 31 that goods be forfeited to the State, the goods are to be disposed of as the Director directs.

Power of Director to retain control of goods

33. Notwithstanding this Part, the Director must not-

(a) release or dispose of any seized goods; or

(b) take any action in relation to the goods to give effect to any order of the court under section 31,

if the Director is required to retain control of the goods under any other written law.

Government not liable for loss, etc

34. The Government is not liable for any loss or damages suffered by a person-

(a) because the Director seized or failed to seize goods under this Act; or

(b) because of the release of any seized goods.

Injunctions

35. (1) If a person has engaged, is engaging, or is proposing to engage in a conduct in contravention of section 9, the court may grant an injunction restraining the person from engaging in such conduct.

(2) The power of the court to grant an injunction may be exercised-

(a) whether or not it appears to the court that the person intends to engage again, or to continue to engage, in such conduct in contravention of section 9; and

(b) whether or not the person has previously engaged in such conduct in contravention of section 9.

(3) The SPGOC 2003 or a licensee only is entitled to apply for an injunction under this section.

(4) An application for an injunction under this section may only be granted in relation to conduct constituting the use of Suva 2003 Games indicia or images referred to in one or more of the following paragraphs-

(a) common Suva 2003 Games indicia;

(b) 2003 South Pacific Games indicia;

(c) common Suva 2003 Games images;

(d) 2003 South Pacific Games images.

(5) An order for injunction granted under this section may only relate to conduct constituting the use of Suva 2003 Games indicia or images in respect of a licence.

(6) The court may, on application, vary or discharge an injunction granted under this section.

(7) The powers conferred on the court by this section are in addition to and not in derogation of, any other powers of the court conferred by law.

(8) For the purposes of subsections (4) and (5), the use of indicia that closely resembles the Suva 2003 Games indicia referred to in those subsections as to be likely to be mistaken, by a reasonable person, for the Suva 2003 Games indicia referred to, is to be taken to be a use of the relevant Suva 2003 Games indicia.

Interim injunctions

36. (1) A court may grant an interim injunction pending the determination of an application under section 35.

(2) For the purposes of subsection (1), a contravention of section 9 is to be taken to have caused immediate and irreparable damage to the applicant.

Damages

37. (1) If the SPGOC 2003 or a licensee suffers loss or damage as a result of any act by a person in contravention of section 9, the loss or damage is recoverable in court.

(2) A request under section 22 for consent to institute an action must be given not later than the day preceding the last working day before this Act expires by virtue of section 44.

(3) The grant of an injunction under section 35 is in addition to any award for loss or damages under this section.

Other remedies

38. (1) The remedies provided under this Part are in addition to remedies provided by law that confers any rights or powers on the SPGOC 2003 or a licensee in relation to any conduct that constitute a contravention of section 9.

(2) Without limiting subsection (1), the remedies provided under this Part are in addition to the remedies provided by the Fair Trading Decree 1992 in relation to engaging in conduct that is misleading or deceptive and in particular in relation to representations-

(a) that goods or services have sponsorship or approval that they do not have; or

(b) that a corporation has a sponsorship approval or affiliation that it does not have.

Corrective advertisements

39. Without limiting section 35 and whether or not relief is granted under that section, where, on the application by the SPGOC 2003, the court is satisfied that a person has engaged in conduct constituting a contravention of section 9, the court may make an order requiring the person, by such means (including a broadcast) as the court thinks fit, at the expense of such person and at times specified in the order, to publish advertisements in accordance with the court order.

Groundless threats of legal proceedings

40. (1) If the SPGOC 2003 or a licensee threatens to make an application or bring an action against a person (the threatened person) on the ground that the threatened person has engaged, is engaging or is proposing to engage in conduct in contravention of section 9, any person aggrieved by the threat may apply to the court for an order-

(a) for a declaration that the SPGOC 2003 or the licensee had no grounds for making such threat; and

(b) for an injunction restraining the SPGOC 2003 or the licensee from continuing to make such threat.

(2) The court may also award damages to the person aggrieved as a result of making such threat.

(3) No action may be brought under this section if the person who made the threat has made an application or brought an action under this Part against the threatened person in respect of any act or proposed act relating to such threat.

(4) An action under this section may be discontinued if the person who made the threat makes an application, or brings an action under this Part against the threatened person in relation to the act, or proposed act, to which the threat relates.

(5) It is a defence in an action under subsection (1) that the conduct of the threatened person, in relation to which the threat was made, constitutes a contravention of section 9.

Counterclaim in action on groundless threats

41. (1) If the SPGOC 2003 or a licensee is entitled to make an application, or bring an action against a person for a contravention of section 9, the SPGOC 2003 or the licensee may in an action under section 40 make a counterclaim for any relief to which the SPGOC 2003 or the licensee would be entitled to under this Part.

(2) This Part applies as if a counterclaim were an application or action made or instituted by SPGOC 2003 or a licensee under sections 35 to 39.

PART 4
MISCELLANEOUS

Intellectual property legislation

42. This Act is intended to operate in addition to the rights conferred or liabilities imposed under the Copyright Act, Merchandise Marks Act, Patents Act and Trade Marks Act.

Regulations

43. (1) The Minister may make regulations to give effect to the provisions of this Act.

(2) The Minister may, by regulations, amend the Schedule.

Expiration of this Act

44. This Act expires on 31 December 2003 unless repealed before that date.

Transitional

45. Any existing agreement in respect of the use for commercial purposes of the Suva 2003 Games images and indicia entered into by or on behalf of the SPGOC 2003 before the commencement of this Act continues until validated by a licence issued under this Act.

SCHEDULE
(Section 5)
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INDICIA ASSOCIATED WITH 2003 SOUTH PACIFIC GAMES

Passed by the House of Representatives this 22^nd day of May 2002.
Passed by the Senate this 14^th day of June 2002.

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