40AUse of designs for services of the Commonwealth or a State

##### 40A Use of designs for services of the Commonwealth or a State (1) At any time after an application for registration of a design has been lodged or a design has been registered, the Commonwealth or a State, or a person authorized in writing by the Commonwealth or a State, may make use of 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; (b) may relate to, and authorize retrospectively the doing of, acts done after the lodging of the application for the registration of the design and before the giving of the authority; and (c) may be given to a person notwithstanding that he is authorized directly or indirectly by the owner of the design to make use of the design. (3) Where a design has been made use of under subsection (1), the Commonwealth or State, unless it appears to the Commonwealth or State that it would be contrary to the public interest to do so, shall inform the owner as soon as possible of the fact and furnish him with such information as to the use made of the design as he from time to time reasonably requires. (4) Where a design is made use of under subsection (1), the terms for that use of the design are such terms as are, whether before or after that use, agreed upon between the Commonwealth or the State and the owner of the design or, in default of agreement, as are fixed by a prescribed court. (5) The prescribed court may, in fixing those terms, 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. (6) An agreement or licence (whether made or given before or after the commencement of this Part) fixing the terms upon which a person other than the Commonwealth or a State may make use of a design is inoperative with respect to the making use of the design, after the commencement of this Part, under subsection (1), unless the agreement has been approved by the Minister or by the Attorney‑General of the State. (7) No action or proceeding for infringement lies in respect of the making use of a design under subsection (1). (8) The right to make use of a design under subsection (1) includes the right to sell articles to which the design has been applied in exercise of that right and a purchaser of goods so sold, and a person claiming through him, is entitled to deal with the articles as if the Commonwealth or State were the owner of the design.