Commonwealth Consolidated Acts

DESIGNS ACT 2003 - SECT 75

  (1)   Without limiting the relief that a court may grant in infringement proceedings, the relief may include:

  (a)   an injunction subject to such terms as the court thinks fit; and

  (b)   at the option of the plaintiff--damages or an account of profits.

Relief for defendant--infringement before date of registration

  (1A)   To the extent that the infringement proceedings relate to an infringement occurring before the date on which the design was registered, the court may:

  (a)   refuse to award damages; or

  (b)   reduce the damages that would otherwise be awarded; or

  (c)   refuse to make an order for an account of profits;

if the defendant satisfies the court that, at the time of the infringement, the defendant was not aware, and could not reasonably have been expected to be aware, that an application in respect of the design had been filed under section   21.

Relief for defendant--infringement on or after date of registration

  (2)   To the extent that the infringement proceedings relate to an infringement occurring on or after the date on which the design was registered, the court may refuse to award damages, reduce the damages that would otherwise be awarded, or refuse to make an order for an account of profits, if the defendant satisfies the court:

  (a)   in the case of primary infringement:

  (i)   that at the time of the infringement, the defendant was not aware that the design was registered; and

  (ii)   that before that time, the defendant had taken all reasonable steps to ascertain whether the design was registered; or

  (b)   in the case of secondary infringement--that at the time of the infringement, the defendant was not aware, and could not reasonably have been expected to be aware, that the design was registered.

Additional damages

  (3)   The court may award such additional damages as it considers appropriate, having regard to the flagrancy of the infringement and all other relevant matters.

Prima facie evidence

  (4)   It is prima facie evidence that the defendant was aware that the design was registered if the product embodying the registered design to which the infringement proceedings relate, or the packaging of the product, is marked so as to indicate registration of the design.

Definitions

  (5)   In this section:

"primary infringement" means infringement of a kind mentioned in paragraph   71(1)(a).

"secondary infringement" means infringement of a kind mentioned in paragraph   71(1)(b), (c), (d) or (e).