Part 3

Cultural emblem

Defences
13
1
If a person is charged with an offence under section 9 by reason of using a design, it is a defence to show that subsection (2), (3) or (4) applies.
2
This subsection applies if the use of the design is for a purpose for which the accused lawfully used it before this section comes into force.
3
This subsection applies if—
a
the design is registered as a trade mark,
b
the use is in relation to goods or services for which the trade mark is registered,
c
the trade mark was registered in relation to those goods or services before this section comes into force, and
d
the use of the design is not an infringement of the trade mark.
4
This subsection applies if—
a
the design is used on goods,
b
the design was applied to the goods before the accused acquired them, and
c
the person who applied the design to the goods falls within subsection (5).
5
A person falls within this subsection if the person—
a
manufactured the goods or dealt with them in the course of trade, and
b
lawfully used the design in relation to similar goods before this section comes into force.
6
If there is sufficient evidence before the court to raise an issue with respect to a defence under this section, the court must assume that the defence is made out unless it is proved beyond reasonable doubt that it is not.
S. 13 in force at 12.12.2017 by S.I. 2017/1087, reg. 2