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Designs Bill 2003

Part 2 Use by the Crown

   

95   Meaning of terms

             (1)  In this Part, a reference to the use of a design, or of a product in relation to which a design is registered, which embodies the design, is a reference to the exercise of the exclusive rights in the design mentioned in paragraphs 10(1)(a) to (e).

             (2)  In this Part:

State includes the following:

                     (a)  the Australian Capital Territory, the Northern Territory and Norfolk Island;

                     (b)  an authority of the Australian Capital Territory, the Northern Territory or Norfolk Island.

96   Use of design by the Commonwealth or a State

             (1)  At any time after a design application disclosing a design has been filed or a design has been registered, the Commonwealth or a State, or a person authorised in writing by the Commonwealth or a State, may use the design for the services of the Commonwealth or State.

             (2)  An authority under subsection (1):

                     (a)  may be given either before or after the registration of the design; and

                     (b)  may relate to, and authorise retrospectively, acts done after the filing of the application and before the giving of the authority; and

                     (c)  may be given to a person even if that person is directly or indirectly authorised by the entitled person in relation to the design, or the registered owner of the design, as the case requires, to use the design.

             (3)  Subject to section 105, a design is taken for the purposes of this Part to be used for the services of the Commonwealth or a State if the use of the design is necessary for the proper provision of those services within Australia.

97   Applicants, entitled persons and registered owners to be informed of use

             (1)  As soon as practicable after the use of a design under section 96, the Commonwealth or a State must inform the following persons of that use:

                     (a)  in the case of a design that has not yet been registered—each applicant for registration of the design and each entitled person in relation to the design;

                     (b)  in the case of a registered design—the registered owner.

             (2)  The Commonwealth or a State must also give to each person mentioned in paragraph (1)(a) or (b) such information about the use of the design as the person from time to time reasonably requires, unless it appears to the Commonwealth or State that it would be contrary to the public interest to do so.

98   Terms of use

             (1)  The terms of use of a design:

                     (a)  are as agreed on, whether before, during or after that use, between the Commonwealth or State and the entitled person in relation to the design or the registered owner of the design, as the case requires; or

                     (b)  in absence of agreement, are as determined by a prescribed court.

             (2)  A prescribed court may, in determining the terms of use, take into consideration compensation that a person interested in the design has received, directly or indirectly, from the Commonwealth or State in respect of the design.

             (3)  A person may not apply to a prescribed court for a determination under subsection (1) in relation to a design unless a certificate of examination has been issued in relation to the design.

99   Previous agreements inoperative

             (1)  This section applies to an agreement or licence (whether made or given before or after the commencement of this Act) fixing the terms on which a person other than the Commonwealth or a State may use a design.

             (2)  Such an agreement or licence is inoperative with respect to the use, after the commencement of this Act, of the design under section 96, unless the agreement or licence has been approved by the Minister or by the Attorney-General of the State.

100   Infringement

                   Infringement proceedings do not lie in relation to the use of a design under section 96.

101   Declaration by court

             (1)  The registered owner of a design who considers that the design has been used under section 96 may apply to a prescribed court for a declaration to that effect.

             (2)  An application under subsection (1) may not be made by the registered owner unless a certificate of examination has been issued.

             (3)  In a proceeding under subsection (1), the Commonwealth or the State concerned is the defendant and may, by way of counter-claim, apply for the revocation of the registration of the design under section 93.

102   Use of design to cease under court order

             (1)  A prescribed court may, on the application of the registered owner, declare that the use of a registered design by the Commonwealth or State is not, or is no longer, necessary for the proper provision of services of the Commonwealth or State.

             (2)  The court may make a declaration under subsection (1) if it is satisfied that in all the circumstances of the case, it is fair and reasonable to do so.

             (3)  The court may further order that the Commonwealth or the State is to cease to use the design:

                     (a)  on and from the day specified in the order; and

                     (b)  subject to any conditions specified in the order.

             (4)  In making an order under subsection (3), the court is to ensure that the legitimate interests of the Commonwealth or State are not adversely affected by the order.

             (5)  A person may not apply to a prescribed court for a declaration under subsection (1) in relation to a design unless a certificate of examination has been issued in relation to the design.

103   Sale of products

                   If a product that embodies a design is sold during the use of the design under section 96, the buyer, and any person claiming through the buyer, is entitled to deal with the product as if the Commonwealth or the State were the registered owner of the design.

104   Forfeited products

                   Nothing in this Part affects the right of the Commonwealth or of a State, or of a person deriving title directly or indirectly from the Commonwealth or a State, to sell or use a product forfeited under a law of the Commonwealth or the State.

105   Supply of products by the Commonwealth to foreign countries

             (1)  This section applies if:

                     (a)  the Commonwealth has made an agreement with a foreign country to supply to the country a product in relation to which a design is registered, which embodies the design; and

                     (b)  the product is required for the defence of the country.

             (2)  The use of the product by the Commonwealth, or by a person authorised in writing by the Commonwealth, for the purposes of supplying the product is taken, for the purposes of this Part, to be a use of the product by the Commonwealth for the services of the Commonwealth.

             (3)  The Commonwealth or the authorised person may:

                     (a)  sell the product to the country under the agreement; and

                     (b)  sell to any person any of the products that are not required for the purpose for which they were made.