41. (1) A person who infringes plant breeder’s rights is liable to the holder thereof and to all persons claiming under the holder for all damages that are, by reason of the infringement, sustained by the holder or any of those persons and, unless otherwise expressly provided, the holder shall be made a party to any action for the recovery of those damages.
Marginal note:Relief in the event of infringement
(2) In an action for infringement of plant breeder’s rights that is before a court of competent jurisdiction, the court or a judge thereof may make any interim or final order sought by any of the parties and deemed just by the court or judge, including provision for relief by way of injunction and recovery of damages and generally respecting proceedings in the action and, without limiting the generality of the foregoing, may make an order
(a) for restraint of such use, production or sale of the subject-matter of those rights as may constitute such an infringement and for punishment in the event of disobedience of the order for that restraint;
(b) for compensation of an aggrieved person;
(c) for and in respect of inspection or account; and
(d) with respect to the custody or disposition of any offending material, products, wares or articles.
(3) An appeal lies from any order under subsection (2) under the same circumstances and to the same court as from other judgments or orders of the court in which the order is made.
Marginal note:Jurisdiction of provincial courts
42. (1) An action for infringement of plant breeder’s rights may be brought in the court of record that, in the province in which the infringement is alleged to have occurred, has jurisdiction pecuniarily to the amount of the damages claimed and that, in relation to other courts of the province, holds its sittings nearest to the place of residence or place of business of the defendant.
Marginal note:Proof of jurisdiction
(2) The court in which an action is brought in accordance with subsection (1) shall decide the action and determine costs, and assumption of jurisdiction by the court is of itself sufficient proof of jurisdiction.
Marginal note:Section 43 not impaired
(3) Nothing in this section impairs the jurisdiction of the Federal Court under section 43.
Marginal note:Jurisdiction of Federal Court
43. (1) The Federal Court has jurisdiction to entertain an action or proceeding, other than the prosecution of an offence, for the enforcement of a provision of this Act or a right or remedy conferred or defined thereby.
(2) Subject to section 44, the Federal Court has exclusive original jurisdiction, on the application of the Commissioner or of any interested person, to order that any entry in the register be struck out or amended on the ground that, at the date of that application, the entry as it appears on the register does not indicate with accuracy, to the extent of any requirement thereof by virtue of section 63, existing rights of the person appearing to be the registered holder of the plant breeder’s rights to which that entry relates.
Marginal note:Invalidation by Federal Court
(3) Subject to section 44, plant breeder’s rights may, at the instance of the Attorney General of Canada or an interested person, be declared invalid by the Federal Court, but only on the following grounds:
(a) a requirement specified in paragraph 4(2)(a) was not fulfilled;
(b) a condition specified in paragraph 7(1)(a), (b) or (c) was not fulfilled; or
(c) the holder has not complied with paragraph 30(1)(a).
(4) A person who has reasonable cause to believe that any thing done or proposed to be done by that person might be alleged by the holder of plant breeder’s rights to constitute an infringement of those rights may, subject to subsection (5), bring an action in the Federal Court against the holder for a declaration that the thing so done or proposed to be done does not or would not constitute an infringement.
Marginal note:Proceedings not to be taken without giving security
(5) A plaintiff, except the Attorney General of Canada or the attorney general of a province, in an action referred to in subsection (4) shall, before proceeding therein, give security for the costs of the holder in such sum as the Court may direct.
Marginal note:Defendant not required to give security
(6) A defendant in an action for infringement of plant breeder’s rights is not required to give any security for the purpose of obtaining a declaration under subsection (4).
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