8Infringement of monopoly in protected design

#### 8 Infringement of monopoly in protected design (1) A person infringes the monopoly in a protected design if: (a) in the case of the design of the olympic symbol—at any time; or (b) in the case of a registered olympic design or registered torch and flame design—during the protection period in relation to that design; the person, without the licence of the AOC: (c) applies the design or any fraudulent or obvious imitation of it to any article; (d) imports into Australia for sale, or for use for the purposes of any trade or business, any article to which the design or any fraudulent or obvious imitation of it has been applied, whether before or after the commencement of this Act, outside Australia; or (e) sells, or offers or keeps for sale, or hires, or offers or keeps for hire: (i) any article to which the design or any fraudulent or obvious imitation of it has been applied in infringement of the monopoly in the design; or (ii) any article: (A) to which the design or any fraudulent or obvious imitation of it has been applied; and (B) that has been imported into Australia in infringement of the monopoly in the design. (2) A person does not infringe the monopoly in a protected design by virtue of the application of paragraph (1)(c) or subparagraph (1)(e)(i) in relation to an article if, at the time when the person did the act that, but for this subsection, would have constituted the infringement, the person did not intend that the article would be used in Australia at a later time by any person. (3) Subject to subsection (4), if a person infringes the monopoly in a protected design: (a) the AOC; or (b) a holder of a licence in relation to the design whose interests have been, are or would be affected by the infringement; may bring an action or proceeding against the person in the Federal Court for infringement of the monopoly in the design. (4) An action or proceeding for infringement of the monopoly in a protected design shall not be instituted by the holder of a licence in relation to the design without the consent of the AOC. (5) Where: (a) a person, being the holder of a licence in relation to a protected design, applies, by notice in writing served on the AOC, for the consent of the AOC under subsection (4) to the institution by the person of an action or proceeding for infringement of the monopoly in the design; and (b) the AOC does not grant or refuse that consent before the end of the period of 7 days after the day on which the notice was served; the AOC shall, at the end of that period, be deemed to have granted that consent under subsection (4). (6) Consent under subsection (4) to the institution of an action or proceeding shall not be unreasonably refused. (7) Subsection (4) does not affect the granting of an interlocutory injunction on the application of a holder of a licence in relation to a protected design. (8) For the purposes of this section, a design shall not be taken not to be a fraudulent or obvious imitation of a registered olympic design by reason only that the first‑mentioned design does not incorporate the design of the olympic symbol. (9) For the purposes of this section, a design may be a fraudulent or obvious imitation of a registered torch and flame design in relation to an artistic work that incorporates a prescribed torch and flame even though the first‑mentioned design relates to an artistic work that does not include the prescribed olympic torch and flame.