Commonwealth Consolidated Acts

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Part B defence--infringement of existing registered mark

  (1)   This section applies if:

  (a)   immediately before 1   January 1996, a person was engaging in conduct that constituted an infringement of a mark registered under the repealed Act; and

  (b)   the mark is an existing registered mark for the purposes of this Act; and

  (c)   the mark was registered in Part B of the old register before 1   January 1996; and

  (d)   the person has, on or after that day, continuously engaged in, and is engaging in, that conduct; and

  (e)   that conduct is an infringement of the existing registered mark under this Act.

  (2)   In an action for infringement of the existing registered mark (not being an infringement occurring by reason of an act referred to in section   121), an injunction or other relief must not be granted if the person establishes to the satisfaction of the court that the use of the mark is not likely to:

  (a)   deceive or cause confusion; or

  (b)   be taken as indicating a connection in the course of trade between the goods and/or services in respect of which the trade mark is registered and a person having the right, either as registered owner or as authorised user, to use the trade mark.

Note:   For existing registered mark see section   6.

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