Task 2

Provide suggestions to GEM on the possible outcome, if GEM decides to continue the litigation.

Facts: GEM Ltd manufactures and sells vehicles. Its top range model was modified by upgrading the engine and altering the exterior using the shaped bumper bar. GEM became aware that replica bumper bars were available for purchase through the website and outlets of TSR Auto Pty Ltd. It enabled car owners to customise the appearance of their standard vehicles to make them look like the more expensive model. GEM brought proceedings against TSR alleging that TSR's replicas infringed its registered design of the bumper bar under s 71 of the Design Act. TSR claims that bumper bars were labelled with a sticker stating 'authorised for use only in repairs' and they were used for the purpose of the repair. GEM provided evidence that TSR supplied replicas to sellers whose businesses were directed to the upgrade or customisation of cars. TSR cross-claimed that the registered design should be revoked due to the lack of newness. GEM exhibited a brochure of the bumper bar at an EXPO three months before the design application. The brochure contained a front-on photo of the product (see below). Later on, the front-on photo in the brochure was posed on GEM's website.