71AInfringement exemption—prior use

#### 71A Infringement exemption—prior use (1) In relation to a registered design where the priority date of the design is on or after the commencement of this section, a person may, without infringing the registered design, do an act: (a) that is referred to in paragraph 71(1)(a), (b), (c), (d) or (e); and (b) that would infringe that registered design apart from this subsection; if before that priority date: (c) the person had: (i) made a product, in relation to which the design became registered, which embodied a design (the comparable design) that was identical to, or substantially similar in overall impression to, the design that became registered; or (ii) imported such a product into Australia for sale, or for use for the purposes of any trade or business; or (iii) sold, hired or otherwise disposed of such a product; or (iv) used such a product in any way for the purposes of any trade or business; or (v) kept such a product for the purpose of doing any of the things mentioned in subparagraph (iii) or (iv); or (d) the person had taken definite steps (contractually or otherwise and whether or not in Australia) to do an act covered by paragraph (c). > Note: For paragraph (c)—see section 4 for the application of this Act. (2) Subsection (1) does not apply unless immediately before the priority date of the registered design: (a) either: (i) the person was doing an act covered by paragraph (1)(c); or (ii) the person was not doing such an act only because the person had temporarily stopped the doing of such an act; or (b) either: (i) the person was taking the steps covered by paragraph (1)(d); or (ii) the person was not taking such steps only because the person had temporarily stopped the taking of such steps. Limit if comparable design derived from registered owner etc. (3) Subsection (1) does not apply if the person derived the comparable design from one of the following entities: (a) the person who became the registered owner of the registered design referred to in subsection (1); (b) any predecessor in title of the person referred to in paragraph (a); (c) the person who created that registered design if that person is not covered by paragraph (a) or (b); unless the derivation was from information made publicly available by or with the consent of an entity covered by paragraph (a) or (b). Exemption for successors in title (4) A person (the disposer) may dispose to another person the whole of the disposer’s entitlement under subsection (1) or this subsection to do an act without infringing the registered design referred to in subsection (1). If there is such a disposal, the other person may, without infringing that registered design, do an act: (a) that is referred to in paragraph 71(1)(a), (b), (c), (d) or (e); and (b) that would infringe that registered design apart from this subsection. Exemption for persons who obtain products (5) If a person sells or otherwise disposes of a particular product to another person: (a) in accordance with subsection (1) or (4) or this subsection; and (b) without infringing the registered design referred to in subsection (1); the other person may, without infringing that registered design, do an act: (c) that is referred to in paragraph 71(1)(c), (d) or (e) in relation to that product; and (d) that would infringe that registered design apart from this subsection.