42. Declaration as to non-infringement

A declaration that an act does not, or a proposed act would not, constitute an infringement of a registered design may be made by the Court in any proceedings between the person doing or proposing to do the act and the registered owner, even though no assertion to the contrary has been made by the registered owner, if it is shown that —

that person has applied in writing to the registered owner for a written acknowledgment to the effect of the declaration claimed, and has furnished the registered owner with full particulars in writing of the act in question; and

the registered owner has refused or failed to give any such acknowledgment.