Cap. 416 Art. 18Period after which remedy of delivery up not available. L.N. 186 of 2006.

(1) An application for an order under article 16 may not be made after the end of the period of six years from -

(a) in the case of infringing goods, the date on which the trademark was applied to the goods or their packaging,

(b) in the case of infringing material, the date on which the trademark was applied to the material, or

(c) in the case of infringing articles, the date on which they were made, except as provided in the following sub-article.

(2) If during the whole or part of that period the proprietor of the registered trademark 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 could with reasonable diligence have discovered those facts.

(a) for an order that they be destroyed or forfeited to such person as the Court may think fit, or

(b) for a decision that no such order should be made.

(2) In considering its decision, the Court shall consider whether other remedies available in an action for infringement of the registered trademark would be adequate to compensate the proprietor and any licensee to protect their interests.

(3) The Court shall order the service of the writ on persons having an interest in the goods, material or articles, and any person having an interest shall be entitled -

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

(b) to appeal against any order made, whether or not he appeared at first instance, and any such order shall not take effect until the end of the period within which an appeal may be filed or, if before the end of that period an appeal is so filed, until the final determination or abandonment of the proceedings on the appeal.

(4) Where there is more than one person interested in the goods, material or articles, the Court shall make such order as it thinks fit.

(5) If the Court decides that no order should be made under this article, the person in whose possession, custody or control the goods, material or articles were before being delivered up is entitled to their return.