72Infringement exemption—repairs

#### 72 Infringement exemption—repairs (1) Despite subsection 71(1), a person does not infringe a registered design if: (a) the person uses, or authorises another person to use, a product: (i) in relation to which the design is registered; and (ii) which embodies a design that is identical to, or substantially similar in overall impression to, the registered design; and (b) the product is a component part of a complex product; and (c) the use or authorisation is for the purpose of the repair of the complex product so as to restore its overall appearance in whole or part. (2) If: (a) a person (the first person) uses or authorises another person to use a product: (i) in relation to which a design is registered; and (ii) which embodies a design that is identical to, or substantially similar in overall impression to, the registered design; and (b) the first person asserts in infringement proceedings that, because of the operation of subsection (1), the use or authorisation did not infringe the registered design; the person bringing the infringement proceedings bears the burden of proving that the first person knew, or ought reasonably to have known, that the use or authorisation was not for the purpose mentioned in paragraph (1)(c). (3) For the purposes of subsection (1): (a) a repair is taken to be so as to restore the overall appearance of a complex product in whole if the overall appearance of the complex product immediately after the repair is not materially different from its original overall appearance; and (b) a repair is taken to be so as to restore the overall appearance of a complex product in part if any material difference between: (i) the original overall appearance of the complex product; and (ii) the overall appearance of the complex product immediately after the repair; is solely attributable to the fact that only part of the complex product has been repaired. (4) In applying subsection (3), a court must apply the standard of a person who is familiar with the complex product, or products similar to the complex product (whether or not the person is a user of the complex product or of products similar to the complex product). (5) In this section: > repair, in relation to a complex product, includes the following: (a) restoring a decayed or damaged component part of the complex product to a good or sound condition; (b) replacing a decayed or damaged component part of the complex product with a component part in good or sound condition; (c) necessarily replacing incidental items when restoring or replacing a decayed or damaged component part of the complex product; (d) carrying out maintenance on the complex product. > use, in relation to a product, means: (a) to make or offer to make the product; or (b) to import the product into Australia for sale, or for use for the purposes of any trade or business; or (c) to sell, hire or otherwise dispose of, or offer to sell, hire or otherwise dispose of, the product; or (d) to use the product in any other way for the purposes of any trade or business; or (e) to keep the product for the purpose of doing any of the things mentioned in paragraph (c) or (d).