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.