Document ID: chunk:federal_register_of_legislation:C2004A02420:body:0:p18
Version: federal_register_of_legislation:C2004A02420
Segment Type: other
Provision Reference: 
Character Range: 41482–44074

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 sub-section (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 sub-section (1).
"(8) The right to make use of a design under sub-section (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.

Declaration may be sought as to use of registered design
"40b. (1) An owner of a design who considers that the design has been made use of under sub-section 40a (1) may apply to a prescribed court for a declaration accordingly.

"(2) In a proceeding under sub-section (1)—
      (a) the Commonwealth or the State concerned, as the case may be, shall be the defendant; and
      (b) where the design is a registered design, the Commonwealth or State may, by way of counter-claim in the proceeding, apply for the rectification of the register by the expunging of the entry of the registration of the design from the register.

Forfeited articles
"40c. Nothing in this Part affects the rights 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 an article forfeited under a law of the Commonwealth or the State.

Acquisition of designs by the Commonwealth
"40d. (1) The Governor-General may direct that a design the subject of an application for registration, or a registered design, shall be acquired by the Commonwealth from the owner, and, thereupon, the design or registered design, and all rights in respect of the design or registered design, are, by force of this section, transferred to and vested in the Commonwealth.
"(2) Notice of the acquisition shall be given to the owner and be published in the Official Journal and the Gazette unless, in the case of the acquisition of a design the subject of an application for registration, an order is in force under section 40f in relation to the application.
"(3) The Commonwealth shall pay to the owner of the design, and, in the case of the acquisition of a registered design, to all other persons appearing in the register as having an interest in the design, such compensation as is agreed upon between the Commonwealth