Prepared by the Office of Parliamentary Counsel, Canberra
Designs Act 2003
No. 147, 2003
Compilation No. 11
Compilation date: 26 February 2015
Includes amendments up to: Act No. 8, 2015
Registered: 4 March 2015
ComLaw Authoritative Act C2015C00043
About this compilation
This compilation
This is a compilation of the Designs Act 2003 that shows the text of the law as
amended and in force on 26 February 2015 (the compilation date).
This compilation was prepared on 4 March 2015.
The notes at the end of this compilation (the endnotes) include information
about amending laws and the amendment history of provisions of the compiled
law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the
compiled law. Any uncommenced amendments affecting the law are accessible
on ComLaw (www.comlaw.gov.au). The details of amendments made up to, but
not commenced at, the compilation date are underlined in the endnotes. For
more information on any uncommenced amendments, see the series page on
ComLaw for the compiled law.
Application, saving and transitional provisions for provisions and
amendments
If the operation of a provision or amendment of the compiled law is affected by
an application, saving or transitional provision that is not included in this
compilation, details are included in the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as
modified but the modification does not amend the text of the law. Accordingly,
this compilation does not show the text of the compiled law as modified. For
more information on any modifications, see the series page on ComLaw for the
compiled law.
Self-repealing provisions
If a provision of the compiled law has been repealed in accordance with a
provision of the law, details are included in the endnotes.
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Designs Act 2003 i
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Contents
Chapter 1—Introductory 1
Part 1—Preliminary 1 1 Short title ...........................................................................................1
2 Commencement.................................................................................1
3 Crown to be bound ............................................................................2
4 Application of the Act .......................................................................2
Part 2—Interpretation 3 5 Definitions.........................................................................................3
5A Meaning of Convention country ........................................................7
6 Definition of product .........................................................................7
7 Definition of visual feature................................................................8
8 References in this Act to a design......................................................8
Chapter 2—Design rights, ownership and registrable
designs 9
Part 1—Simplified outline of Chapter 2 9 9 Simplified outline ..............................................................................9
Part 2—Design rights 10 10 Exclusive rights of registered owners ..............................................10
11 Assignment of interest in a design...................................................10
12 Power of registered owner to deal with registered design ...............11
Part 3—Ownership of designs 12 13 Who is entitled to be registered as the registered owner of a
design ..............................................................................................12
14 Ownership of registered designs......................................................13
Part 4—Registrable designs: Validity 14
Division 1—Registrable designs 14
15 Registrable designs..........................................................................14
16 Designs that are identical or substantially similar in overall
impression .......................................................................................14
17 Certain things to be disregarded in deciding whether a design
is new and distinctive ......................................................................15
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18 Certain designs not to be treated as other than new and
distinctive ........................................................................................15
Division 2—Substantial similarity in overall impression 17
19 Factors to be considered in assessing substantial similarity in
overall impression ...........................................................................17
Chapter 3—Design applications 19
Part 1—Simplified outline of Chapter 3 19 20 Simplified outline ............................................................................19
Part 2—Design applications 20
Division 1—Applications 20
21 Person may file a design application ...............................................20
22 A design application may be in respect of more than one
design ..............................................................................................20
23 Design applications covering excluded designs...............................21
Division 2—How Registrar must deal with a design application 22
24 Design applications that meet the minimum filing
requirements ....................................................................................22
25 Publication of receipt of application................................................22
Division 3—Filing date and priority date 23
26 Filing date........................................................................................23
27 Priority date .....................................................................................23
Part 3—Amendment or withdrawal of design applications 24 28 Amendment of design applications..................................................24
29 Disputes between applicants............................................................24
30 Persons may ask for design application to proceed in the
person’s name ..................................................................................25
31 Publication of certain details of amended application .....................26
32 Withdrawal of designs and design applications...............................26
Part 4—Lapsing of design applications 27 33 Lapsing of design applications ........................................................27
Chapter 4—Registration or publication of designs 28
Part 1—Simplified outline of Chapter 4 28 34 Simplified outline ............................................................................28
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Part 2—Requests for registration or publication 29 35 Request for registration or publication ............................................29
36 Request for registration or publication—applications in
respect of more than one design ......................................................29
37 Request in respect of designs excluded from an application
in respect of more than one design ..................................................30
38 Replacement of request for registration with request for
publication.......................................................................................30
Part 3—Registration 31
Division 1—Formalities check 31
39 Formalities check—applications in respect of one design
only..................................................................................................31
40 Formalities check—applications in respect of more than one
design ..............................................................................................31
41 Registrar must give applicants an opportunity to correct
deficiencies......................................................................................32
42 What happens after Registrar gives notice under section 41............32
43 Registrar must refuse to register certain designs .............................33
44 Registrar must register certain designs after refusal ........................34
Division 2—Registration procedures 35
45 Registrar must notify applicant of registration and give
public notice ....................................................................................35
Division 3—Term of registration 36
46 Term of registration .........................................................................36
47 Renewal of registration....................................................................36
48 Ceasing of registration.....................................................................36
49 Surrender of registration..................................................................37
50 Revocation of registration on surrender...........................................38
Division 4—Revocation on grounds relating to entitled persons 39
51 Revocation of registration on grounds relating to entitled
persons.............................................................................................39
52 Procedures in relation to application ...............................................39
53 Applications by persons declared to be entitled persons in
court proceedings.............................................................................40
54 Applications by entitled persons after revocation following
surrender of registration...................................................................41
55 Priority date of design if an application filed by a person
declared to be an entitled person .....................................................41
56 Meaning of original registered owner .............................................42
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Part 4—Publication 43 57 Publication of a design ....................................................................43
58 What happens after Registrar gives notice under section 57............43
59 Refusal to publish ............................................................................44
Part 5—Certain documents to be available for public
inspection 45 60 Design applications for registered designs and associated
documents to be open for public inspection.....................................45
61 Certain documents not to be published............................................46
Chapter 5—Examination of designs 48
Part 1—Simplified outline of Chapter 5 48 62 Simplified outline ............................................................................48
Part 2—Requests for examination 49 63 Examination of design .....................................................................49
64 Requirements for request for examination of design .......................49
Part 3—Examination 51 65 What Registrar must do in examining a design ...............................51
66 Amendment of registration ..............................................................51
67 Certificate of examination where registration valid.........................52
68 Revocation of registration after examination...................................53
Part 4—Material may be provided to Registrar 55 69 Certain material may be provided to Registrar ................................55
Chapter 6—Infringement 56
Part 1—Simplified outline of Chapter 6 56 70 Simplified outline ............................................................................56
Part 2—Infringement of registered design 57 71 Infringement of design.....................................................................57
72 Certain repairs do not infringe registered design .............................58
73 Infringement proceedings ................................................................60
74 Counter-claims ................................................................................60
75 Remedies for infringement ..............................................................60
76 Intervention by Registrar .................................................................61
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Part 3—Relief from unjustified threats 62 77 Application for relief from unjustified threats .................................62
78 Court’s power to grant relief............................................................62
79 Counter-claim..................................................................................62
80 Mere notification of registration not a threat ...................................63
81 Legal practitioners, registered patent attorneys and registered
trade marks attorneys.......................................................................63
Chapter 7—Jurisdiction and powers of courts 64
Part 1—Simplified outline of Chapter 7 64 82 Simplified outline ............................................................................64
Part 2—Jurisdiction 65 83 Jurisdiction of Federal Court ...........................................................65
83A Jurisdiction of the Federal Circuit Court .........................................65
84 Jurisdiction of other prescribed courts.............................................65
85 Exercise of jurisdiction....................................................................66
86 Transfer of proceedings etc. ............................................................66
87 Appeals............................................................................................67
88 Powers of Federal Court and Federal Circuit Court on
hearing an appeal.............................................................................67
89 Registrar may appear in appeals ......................................................68
Part 3—Compulsory licences and revocation of registration 69 90 Person may apply to court for compulsory licence ..........................69
91 Terms of compulsory licence...........................................................69
92 Revocation of registration after grant of compulsory licence ..........70
Part 4—Revocation of registration by court in other
circumstances 72 93 Revocation of registration in other circumstances ...........................72
Chapter 8—The Crown 73
Part 1—Simplified outline of Chapter 8 73 94 Simplified outline ............................................................................73
Part 2—Use by the Crown 74 95 Meaning of terms.............................................................................74
96 Use of design by the Commonwealth or a State ..............................74
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97 Applicants, entitled persons and registered owners to be
informed of use................................................................................75
98 Terms of use ....................................................................................75
99 Previous agreements inoperative .....................................................76
100 Infringement ....................................................................................76
101 Declaration by court ........................................................................76
102 Use of design to cease under court order .........................................77
103 Sale of products ...............................................................................77
104 Forfeited products............................................................................77
105 Supply of products by the Commonwealth to foreign
countries ..........................................................................................78
Part 3—Acquisition by and assignments to the Crown 79 106 Acquisition of design by the Commonwealth..................................79
107 Assignment of design to the Commonwealth ..................................80
Part 4—Prohibition orders 81 108 Prohibition of publication of information about designs .................81
109 Publication of information about designs ........................................81
Chapter 9—The Register 83 110 Simplified outline ............................................................................83
111 Registrar must keep Register ...........................................................83
112 Register may be kept by computer ..................................................84
113 Inspection of Register......................................................................84
114 Amendments of Register to record changes of ownership...............84
115 Amendments of Register made to give effect to certain
decisions ..........................................................................................85
116 Reissue of certificates......................................................................85
117 Trusts not to be entered in Register .................................................85
118 Evidentiary provision ......................................................................86
119 Admissibility of unregistered interests ............................................86
120 Rectification of Register ..................................................................87
Chapter 10—Administration 88 121 Simplified outline ............................................................................88
122 Registrar ..........................................................................................88
123 Deputy Registrars ............................................................................88
124 Delegation by Registrar ...................................................................89
125 Designs Office .................................................................................89
126 Seal of Designs Office.....................................................................89
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127 Registrar’s Powers...........................................................................90
128 Recovery of costs ............................................................................90
Chapter 11—Miscellaneous 91
Part 1—Simplified outline of Chapter 11 91 129 Simplified outline ............................................................................91
Part 2—Fees 92 130 Fees .................................................................................................92
Part 3—Offences 93 131 False entries in Register...................................................................93
132 False representation that a design is registered ................................93
133 False representations about the Designs Office ...............................94
134 Failure to comply with requirements of Registrar ...........................95
135 Officers not to traffic etc. in designs................................................95
Part 4—Review of the Registrar’s decisions 97 136 Review by Administrative Appeals Tribunal...................................97
Part 4A—Doing act after end of period otherwise provided for
doing it 98 136A Doing act when Designs Office reopens after end of period
otherwise provided for doing act .....................................................98
Part 5—Extensions of time 100 137 Extensions of time .........................................................................100
138 Consequences of extension............................................................101
139 Protection of third parties ..............................................................101
140 Infringement proceedings ..............................................................102
Part 6—Other 103 141 Powers of agents............................................................................103
142 Right of lien of registered patent attorney and registered
trade marks attorney ......................................................................103
143 Revocation of registration does not affect court decisions and
things done under contracts before revocation ..............................103
144 Filing of documents .......................................................................103
145 Service of documents ....................................................................103
146 Death of applicant before application determined .........................104
147 Death of person after design registered .........................................104
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148 Exercise of discretionary power by Registrar ................................104
149 Regulations....................................................................................104
Chapter 12—Repeal, transitional and saving
provisions 107
Part 1—Repeal of Designs Act 1906 107 150 Repeal............................................................................................107
Part 2—Transitional and saving provisions 108 151 Application of this Act to certain designs......................................108
152 Term of registration of certain designs ..........................................108
153 Applications made before commencing day..................................109
154 Other applications and proceedings ...............................................109
155 Pending proceedings......................................................................110
156 Infringement under old Act ...........................................................110
157 Registrar and Deputy Registrar .....................................................111
158 The Register ..................................................................................111
159 Conversion of transitional applications .........................................111
160 Effect of a converted application ...................................................112
160A Approvals under subsection 40A(6) of old Act .............................113
161 Definitions.....................................................................................113
Endnotes 114
Endnote 1—About the endnotes 114
Endnote 2—Abbreviation key 115
Endnote 3—Legislation history 116
Endnote 4—Amendment history 118
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Introductory Chapter 1
Preliminary Part 1
Section 1
Designs Act 2003 1
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
An Act relating to designs, and for related purposes
Chapter 1—Introductory
Part 1—Preliminary
1 Short title
This Act may be cited as the Designs Act 2003.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, on the day or at the
time specified in column 2 of the table.
Commencement information
Column 1 Column 2 Column 3
Provision(s) Commencement Date/Details
1. Sections 1 and
2 and anything in
this Act not
elsewhere covered
by this table
The day on which this Act receives the
Royal Assent
17 December
2003
2. Sections 3 to
161
A single day to be fixed by Proclamation,
subject to subsection (3)
17 June 2004
Note: This table relates only to the provisions of this Act as originally
passed by the Parliament and assented to. It will not be expanded to
deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional information that is not part
of this Act. This information may be included in any published
version of this Act.
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Chapter 1 Introductory
Part 1 Preliminary
Section 3
2 Designs Act 2003
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(3) If a provision covered by item 2 of the table does not commence
within the period of 6 months beginning on the day on which this
Act receives the Royal Assent, it commences on the first day after
the end of that period.
3 Crown to be bound
(1) This Act binds the Crown in right of the Commonwealth, of each
of the States, of the Australian Capital Territory, of the Northern
Territory and of Norfolk Island.
(2) Nothing in this Act makes the Crown liable to be prosecuted for an
offence.
4 Application of the Act
This Act extends to:
(a) each external Territory; and
(b) the continental shelf; and
(c) the waters above the continental shelf; and
(d) the airspace above Australia, each external Territory and the
continental shelf.
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Introductory Chapter 1
Interpretation Part 2
Section 5
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Part 2—Interpretation
5 Definitions
In this Act, unless the contrary intention appears:
Agency has the same meaning as in the Public Service Act 1999.
artistic work has the same meaning as in the Copyright Act 1968.
Australia includes each external Territory.
authority, in relation to the Commonwealth, a State or a Territory,
means a body established for a public purpose by or under a law of
the Commonwealth, State or Territory.
certificate of examination means a certificate of examination of a
registered design issued under Chapter 5.
Commonwealth includes a Commonwealth authority.
complex product means a product comprising at least 2 replaceable
component parts permitting disassembly and re-assembly of the
product.
continental shelf means the continental shelf of Australia as
defined in the Seas and Submerged Lands Act 1973.
Convention country has the meaning given by section 5A.
corresponding design, in relation to an artistic work, has the same
meaning as in Division 8 of Part III of the Copyright Act 1968.
Deputy Registrar means a Deputy Registrar appointed under
section 123.
design, in relation to a product, means the overall appearance of
the product resulting from one or more visual features of the
product.
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Chapter 1 Introductory
Part 2 Interpretation
Section 5
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Note: See also section 8.
design application means an application filed under section 21.
Designs Office means the Designs Office established by
section 125.
employee means a person, other than the Registrar or a Deputy
Registrar, who:
(a) is a person engaged under the Public Service Act 1999 and is
employed in the Designs Office; or
(b) is not such a person but performs services, in the Designs
Office, for or on behalf of the Commonwealth.
entitled person, in relation to a design, means a person entitled
under section 13 to be entered in the Register as the registered
owner of the design.
examination, in relation to a design, means examination of the
design under section 65.
Federal Circuit Court means the Federal Circuit Court of
Australia.
Federal Court means the Federal Court of Australia.
file means file with the Designs Office.
Note: Section 144 deals with filing.
filing date has the meaning given by section 26.
head, in relation to the Designs Office of a Convention country,
means the official chief (however described) of that Office.
infringement proceedings means an action or proceedings for the
infringement of a registered design.
initial application has the meaning given by section 23.
legal personal representative, in relation to a deceased person,
means a person to whom:
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Introductory Chapter 1
Interpretation Part 2
Section 5
Designs Act 2003 5
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(a) probate of the will of the deceased person; or
(b) letters of administration of the estate of the deceased person;
or
(c) other like grant;
has been granted, whether in Australia or elsewhere.
legal practitioner means a barrister or solicitor of the High Court
of Australia or of the Supreme Court of a State or Territory.
Locarno Agreement means the Agreement establishing an
International Classification for Industrial Design, signed at
Locarno on 8 October 1968.
minimum filing requirements has the meaning given by
section 21.
PPSA security interest (short for Personal Property Securities Act
security interest) means a security interest within the meaning of
the Personal Property Securities Act 2009 and to which that Act
applies, other than a transitional security interest within the
meaning of that Act.
Note 1: The Personal Property Securities Act 2009 applies to certain security
interests in personal property. See the following provisions of that
Act:
(a) section 8 (interests to which the Act does not apply);
(b) section 12 (meaning of security interest);
(c) Chapter 9 (transitional provisions).
Note 2: For the meaning of transitional security interest, see section 308 of
the Personal Property Securities Act 2009.
prescribed court means the following:
(a) the Federal Court of Australia;
(aa) the Federal Circuit Court;
(b) the Supreme Court of a State;
(c) the Supreme Court of the Australian Capital Territory;
(d) the Supreme Court of the Northern Territory;
(e) the Supreme Court of Norfolk Island.
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Chapter 1 Introductory
Part 2 Interpretation
Section 5
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prior art base has the meaning given by section 15.
priority date, in relation to a design, means the priority date of the
design under section 27.
product has the meaning given by section 6.
Register means the Register of Designs mentioned in section 111.
registered means registered under this Act.
registered design, at a particular time, means a design that is
registered at that time.
registered owner has the meaning given by section 14.
registered patent attorney has the same meaning as in the Patents
Act 1990.
registered trade marks attorney has the same meaning as in the
Trade Marks Act 1995.
registrable design has the meaning given by section 15.
Registrar means the Registrar of Designs holding office under this
Act.
relevant parties, in relation to the examination of a design under
Chapter 5, means:
(a) the registered owner of the design; and
(b) the person who requested the examination; and
(c) each person who is entered on the Register as having an
interest in the design.
relevant proceedings, in relation to a registered design, means
court proceedings:
(a) for infringement of the registered design; or
(b) for revocation of the registration of the design; or
(c) in which the validity of the registration of the design is in
dispute.
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Introductory Chapter 1
Interpretation Part 2
Section 5A
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representation means a drawing, tracing or specimen of a product
embodying a design or a photograph of such a drawing, tracing or
specimen.
State includes a State authority.
term of registration has the meaning given by section 46.
Territory includes a Territory authority.
visual feature has the meaning given by section 7.
5A Meaning of Convention country
(1) In this Act:
Convention country means a foreign country or region of a kind
prescribed by the regulations.
(2) Despite subsection 14(2) of the Legislative Instruments Act 2003,
regulations made for the purposes of this section may make
provision in relation to a matter by applying, adopting or
incorporating, with or without modification, any matter contained
in any other instrument or other writing as in force or existing from
time to time.
6 Definition of product
(1) For the purposes of this Act, a thing that is manufactured or hand
made is a product (but see subsections (2), (3) and (4)).
(2) A component part of a complex product may be a product for the
purposes of this Act, if it is made separately from the product.
(3) A thing that has one or more indefinite dimensions is only a
product for the purposes of this Act if any one or more of the
following applies to the thing:
(a) a cross-section taken across any indefinite dimension is fixed
or varies according to a regular pattern;
(b) all the dimensions remain in proportion;
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Chapter 1 Introductory
Part 2 Interpretation
Section 7
8 Designs Act 2003
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(c) the cross-sectional shape remains the same throughout,
whether or not the dimensions of that shape vary according to
a ratio or series of ratios;
(d) it has a pattern or ornamentation that repeats itself.
(4) A kit which, when assembled, is a particular product is taken to be
that product.
7 Definition of visual feature
(1) In this Act:
visual feature, in relation to a product, includes the shape,
configuration, pattern and ornamentation of the product.
(2) A visual feature may, but need not, serve a functional purpose.
(3) The following are not visual features of a product:
(a) the feel of the product;
(b) the materials used in the product;
(c) in the case of a product that has one or more indefinite
dimensions:
(i) the indefinite dimension; and
(ii) if the product also has a pattern that repeats itself—
more than one repeat of the pattern.
8 References in this Act to a design
In this Act, a reference to a design is a reference to a design in
relation to a product.
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Design rights, ownership and registrable designs Chapter 2
Simplified outline of Chapter 2 Part 1
Section 9
Designs Act 2003 9
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Chapter 2—Design rights, ownership and
registrable designs
Part 1—Simplified outline of Chapter 2
9 Simplified outline
The following is a simplified outline of this Chapter:
This Chapter sets out matters relating to design rights.
Part 2 specifies the exclusive rights of the registered owners of a
registered design.
Part 3 specifies:
(a) who is entitled to be registered as the owner of an
unregistered design; and
(b) who is the registered owner of a registered design.
Part 4 defines the key concepts of registrable design, newness,
distinctiveness and substantial similarity. These concepts are
important because:
(a) in examining a design under Chapter 5, the
Registrar must decide whether it is new and
distinctive when compared to the prior art base;
and
(b) in deciding whether a person has infringed a
registered design under Chapter 6, a court must
consider whether the allegedly infringing design is
substantially similar in overall impression to the
registered design.
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Chapter 2 Design rights, ownership and registrable designs
Part 2 Design rights
Section 10
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Part 2—Design rights
10 Exclusive rights of registered owners
(1) The registered owner of a registered design has the exclusive right,
during the term of registration of the design:
(a) to make or offer to make a product, in relation to which the
design is registered, which embodies the design; and
(b) to import such a product into Australia for sale, or for use for
the purposes of any trade or business; and
(c) to sell, hire or otherwise dispose of, or offer to sell, hire or
otherwise dispose of, such a product; and
(d) to use such a product in any way for the purposes of any
trade or business; and
(e) to keep such a product for the purpose of doing any of the
things mentioned in paragraph (c) or (d); and
(f) to authorise another person to do any of the things mentioned
in paragraph (a), (b), (c), (d) or (e).
(2) The exclusive rights mentioned in subsection (1) are personal
property and are capable of assignment and of devolution by will
or by operation of law.
(3) This section is subject to this Act.
11 Assignment of interest in a design
(1) The registered owner of a registered design may assign all or part
of the registered owner’s interest in the design by writing.
(2) An assignment under subsection (1) must be signed by, or on
behalf of, the assignor and the assignee.
(3) An assignment under subsection (1) may be for a particular place.
Note: Section 114 deals with amendments to the Register to record the
assignment of an interest in a design.
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Design rights, ownership and registrable designs Chapter 2
Design rights Part 2
Section 12
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12 Power of registered owner to deal with registered design
(1) The registered owner of a registered design may, subject to any
rights appearing in the Register to be vested in another person, deal
with the registered owner’s interest in the design as absolute owner
of it, and give good discharges for any consideration for such
dealing.
(2) However, subsection (1) does not protect a person who deals with
the registered owner of a registered design otherwise than as a
purchaser in good faith for value and without notice of any fraud
on the part of the registered owner.
(2A) Despite subsection (1), the recording in the Register of a right that
is a PPSA security interest does not affect a dealing with an interest
in a registered design.
(3) Equities in relation to a registered design may be enforced against
the registered owner, except to the prejudice of a purchaser in good
faith for value.
(4) Subsection (3) does not apply in relation to an equity that is a
PPSA security interest.
Note: The Personal Property Securities Act 2009 deals with the rights of
purchasers of personal property (including intellectual property such
as designs) that is subject to PPSA security interests. That Act also
provides for the priority and enforcement of PPSA security interests.
See the following provisions of that Act:
(a) Part 2.5 (taking personal property free of security interests);
(b) Part 2.6 (priority between security interests);
(c) Chapter 4 (enforcement of security interests).
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Chapter 2 Design rights, ownership and registrable designs
Part 3 Ownership of designs
Section 13
12 Designs Act 2003
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Part 3—Ownership of designs
13 Who is entitled to be registered as the registered owner of a
design
(1) A person mentioned in any of the following paragraphs is entitled
to be entered on the Register as the registered owner of a design
that has not yet been registered:
(a) the person who created the design (the designer);
(b) if the designer created the design in the course of
employment, or under a contract, with another person—the
other person, unless the designer and the other person have
agreed to the contrary;
(c) a person who derives title to the design from a person
mentioned in paragraph (a) or (b), or by devolution by will or
by operation of law;
(d) a person who would, on registration of the design, be entitled
to have the exclusive rights in the design assigned to the
person;
(e) the legal personal representative of a deceased person
mentioned in paragraph (a), (b), (c) or (d).
(2) Despite subsection (1), a person is not entitled to be entered on the
Register as the registered owner of a design that has not yet been
registered if:
(a) the person has assigned all of the person’s rights in the
design to another person; or
(b) the person’s rights in the design have devolved on another
person by operation of law.
(3) To avoid doubt:
(a) more than one person may be entitled to be entered on the
Register as the registered owner of a design; and
ComLaw Authoritative Act C2015C00043
Design rights, ownership and registrable designs Chapter 2
Ownership of designs Part 3
Section 14
Designs Act 2003 13
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
(b) unless the contrary intention appears, a reference to the
registered owner of a registered design in this Act is a
reference to each of the registered owners of the design.
(4) No person other than a person mentioned in paragraph (1)(a), (b),
(c), (d) or (e) is entitled to be entered on the Register as the
registered owner of a design that has not yet been registered.
14 Ownership of registered designs
(1) The registered owner of a registered design at a particular time is:
(a) the person who, at that time, is entered in the Register as the
registered owner of the design; or
(b) if, at that time, there are 2 or more such persons—each of
them.
(2) If there are 2 or more registered owners of a registered design:
(a) each of them is entitled to an equal, undivided share in the
exclusive rights in that design; and
(b) subject to paragraph (c), each registered owner is entitled to
exercise the exclusive rights in the design to the registered
owner’s own benefit without accounting to the others; and
(c) none of them can grant a licence to exercise the exclusive
rights in the design, or assign an interest in the design,
without the consent of the others.
(3) If a product that embodies a registered design is sold by any of 2 or
more registered owners of the design, the buyer, and a person
claiming through the buyer, may deal with the product as if it had
been sold by all the registered owners.
(4) Subsection (2) is subject to any contrary agreement between the
registered owners of a registered design.
ComLaw Authoritative Act C2015C00043
Chapter 2 Design rights, ownership and registrable designs
Part 4 Registrable designs: Validity
Division 1 Registrable designs
Section 15
14 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Part 4—Registrable designs: Validity
Division 1—Registrable designs
15 Registrable designs
(1) A design is a registrable design if the design is new and distinctive
when compared with the prior art base for the design as it existed
before the priority date of the design.
(2) The prior art base for a design (the designated design) consists of:
(a) designs publicly used in Australia; and
(b) designs published in a document within or outside Australia;
and
(c) designs in relation to which each of the following criteria is
satisfied:
(i) the design is disclosed in a design application;
(ii) the design has an earlier priority date than the
designated design;
(iii) the first time documents disclosing the design are made
available for public inspection under section 60 is on or
after the priority date of the designated design.
Note: For document, see section 2B of the Acts Interpretation Act 1901.
16 Designs that are identical or substantially similar in overall
impression
(1) A design is new unless it is identical to a design that forms part of
the prior art base for the design.
(2) A design is distinctive unless it is substantially similar in overall
impression to a design that forms part of the prior art base for the
design (see section 19).
(3) Subject to paragraph 15(2)(c), the newness or distinctiveness of a
design is not affected by the mere publication or public use of the
ComLaw Authoritative Act C2015C00043
Design rights, ownership and registrable designs Chapter 2
Registrable designs: Validity Part 4
Registrable designs Division 1
Section 17
Designs Act 2003 15
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
design in Australia on or after the priority date of the design, or by
the registration of another design with the same or a later priority
date.
17 Certain things to be disregarded in deciding whether a design is
new and distinctive
(1) For the purpose of deciding whether a design is new and
distinctive, the person making the decision must disregard:
(a) any publication or use of the design, with the consent of the
registered owner of the design, or the registered owner’s
predecessor in title, in circumstances prescribed by the
regulations; and
(b) any publication or use of the design, without the consent of
the registered owner of the design, by another person who
derived or obtained the design from the registered owner of
the design, or from the registered owner’s predecessor in
title;
but only if a design application in respect of the design is made
within the prescribed period.
(2) For the purpose of deciding whether a design is new and
distinctive, the person making the decision must disregard:
(a) any information given by, or with the consent of, the
registered owner of the design, or the registered owner’s
predecessor in title, to any of the following, but to no other
person or organisation:
(i) the Commonwealth, a State or a Territory;
(ii) a person authorised by the Commonwealth, a State or a
Territory to investigate the design; and
(b) anything done for the purpose of an investigation mentioned
in subparagraph (a)(ii).
18 Certain designs not to be treated as other than new and
distinctive
(1) This section applies if:
ComLaw Authoritative Act C2015C00043
Chapter 2 Design rights, ownership and registrable designs
Part 4 Registrable designs: Validity
Division 1 Registrable designs
Section 18
16 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
(a) copyright under the Copyright Act 1968 subsists in an artistic
work; and
(b) an application is made by, or with the consent of, the owner
of that copyright for registration of a corresponding design.
(2) The design is not to be treated, for the purposes of this Act, as
being other than new and distinctive, or as having been published,
by reason only of any use previously made of the artistic work,
unless:
(a) the previous use consisted of, or included, the sale, letting for
hire or exposing for sale or hire of products to which the
design had been applied industrially, other than products
specified in regulations for the purposes of
paragraph 43(1)(a); and
(b) the previous use was by, or with the consent of, the owner of
the copyright in the artistic work.
(3) In this section:
applied industrially has the meaning given by regulations under
section 77 of the Copyright Act 1968.
ComLaw Authoritative Act C2015C00043
Design rights, ownership and registrable designs Chapter 2
Registrable designs: Validity Part 4
Substantial similarity in overall impression Division 2
Section 19
Designs Act 2003 17
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Division 2—Substantial similarity in overall impression
19 Factors to be considered in assessing substantial similarity in
overall impression
(1) If a person is required by this Act to decide whether a design is
substantially similar in overall impression to another design, the
person making the decision is to give more weight to similarities
between the designs than to differences between them.
(2) The person must also:
(a) have regard to the state of development of the prior art base
for the design; and
(b) if the design application in which the design was disclosed
included a statement (a statement of newness and
distinctiveness) identifying particular visual features of the
design as new and distinctive:
(i) have particular regard to those features; and
(ii) if those features relate to only part of the design—have
particular regard to that part of the design, but in the
context of the design as a whole; and
(c) if only part of the design is substantially similar to another
design, have regard to the amount, quality and importance of
that part in the context of the design as a whole; and
(d) have regard to the freedom of the creator of the design to
innovate.
(3) If the design application in which the design was disclosed did not
include a statement of newness and distinctiveness in respect of
particular visual features of the design, the person must have
regard to the appearance of the design as a whole.
(4) In applying subsections (1), (2) and (3), the person must apply the
standard of a person who is familiar with the product to which the
design relates, or products similar to the product to which the
design relates (the standard of the informed user).
ComLaw Authoritative Act C2015C00043
Chapter 2 Design rights, ownership and registrable designs
Part 4 Registrable designs: Validity
Division 2 Substantial similarity in overall impression
Section 19
18 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
(5) In this section, a reference to a person includes a reference to a
court.
ComLaw Authoritative Act C2015C00043
Design applications Chapter 3
Simplified outline of Chapter 3 Part 1
Section 20
Designs Act 2003 19
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Chapter 3—Design applications
Part 1—Simplified outline of Chapter 3
20 Simplified outline
The following is a simplified outline of this Chapter:
This Chapter sets out the rules relating to design applications.
Part 2 provides that a person may file a design application in
relation to one or more designs.
If the design application meets the minimum filing requirements,
the design application is allocated a filing date, and each design
disclosed in it obtains a priority date.
Under Chapter 4, a person who has filed a design application may,
within the prescribed period, request registration or publication of
all or any of the designs disclosed in the application.
Part 3 deals with amendment and withdrawal of design
applications.
Part 4 deals with the lapsing of design applications.
ComLaw Authoritative Act C2015C00043
Chapter 3 Design applications
Part 2 Design applications
Division 1 Applications
Section 21
20 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Part 2—Design applications
Division 1—Applications
21 Person may file a design application
(1) A person may file an application (a design application) in respect
of a design.
(2) A design application must comply with:
(a) any requirements prescribed by the regulations in relation to
representations of designs disclosed in the application; and
(b) any other requirements prescribed by the regulations.
These are the minimum filing requirements.
(3) A design application may be made by more than one person.
(4) A design application must specify the entitled person or persons in
relation to the designs disclosed in the design application.
22 A design application may be in respect of more than one design
(1) A single design application may be in respect of:
(a) one design in relation to one product; or
(b) one design that is a common design in relation to more than
one product; or
(c) more than one design in relation to one product; or
(d) more than one design in relation to more than one product, if
each product belongs to the same Locarno Agreement class.
(2) If more than one design is disclosed in a design application, the
entitled person or persons must be the same in relation to each
design.
Note: This means that a separate application must be made in respect of
designs with a different entitled person or persons.
ComLaw Authoritative Act C2015C00043
Design applications Chapter 3
Design applications Part 2
Applications Division 1
Section 23
Designs Act 2003 21
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
(3) To avoid doubt, a design that is a common design in relation to
more than one product is a design in relation to each product.
23 Design applications covering excluded designs
(1) If:
(a) one or more designs are disclosed in a design application (the
initial application); and
(b) after the initial application is filed, it is amended under
section 28 to exclude one or more of those designs (the
excluded designs); and
(c) the initial application has not lapsed or been withdrawn; and
(d) none of the designs in the initial application has been
registered, or published under section 57;
the applicant may file a design application under section 21 in
respect of one or more of the excluded designs.
(2) An application in respect of one or more excluded designs must be
filed within the period prescribed by the regulations.
(3) To avoid doubt, an application in respect of one or more excluded
designs must not include a design that has been withdrawn under
subsection 32(2) from the initial application or refused registration
or publication.
ComLaw Authoritative Act C2015C00043
Chapter 3 Design applications
Part 2 Design applications
Division 2 How Registrar must deal with a design application
Section 24
22 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Division 2—How Registrar must deal with a design
application
24 Design applications that meet the minimum filing requirements
(1) If a design application meets the minimum filing requirements
mentioned in subsection 21(2), the Registrar must give a written
notice to the applicant stating:
(a) that the design application meets the minimum filing
requirements; and
(b) the filing date of the application; and
(c) if the design application was not accompanied by a request
for registration or publication of each design disclosed in the
application—that such a request may be made under
section 35.
(2) If a purported design application does not meet the minimum filing
requirements, the Registrar must give a written notice to that effect
to the applicant.
(3) A notice under subsection (1) or (2) must be given in accordance
with the regulations.
25 Publication of receipt of application
The Registrar must publish, in the manner prescribed by the
regulations, the details prescribed by the regulations in relation to
each design application that meets the minimum filing
requirements.
ComLaw Authoritative Act C2015C00043
Design applications Chapter 3
Design applications Part 2
Filing date and priority date Division 3
Section 26
Designs Act 2003 23
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Division 3—Filing date and priority date
26 Filing date
A design application has the filing date determined in accordance
with the regulations.
27 Priority date
(1) The priority date of a design disclosed in a design application that
meets the minimum filing requirements is:
(a) the filing date of the design application; or
(b) if, before the design application was filed, an application for
protection in respect of the design had been made in a
Convention country in accordance with the regulations—the
date prescribed by the regulations; or
(c) if the regulations provide for a different date as the priority
date—the date prescribed by the regulations.
(2) If more than one design is disclosed in a design application, the
designs may have different priority dates.
ComLaw Authoritative Act C2015C00043
Chapter 3 Design applications
Part 3 Amendment or withdrawal of design applications
Section 28
24 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Part 3—Amendment or withdrawal of design
applications
28 Amendment of design applications
(1) The Registrar may amend a design application if requested to do so
by the applicant.
(2) A request under subsection (1) must be made in the manner
prescribed by the regulations.
(3) Despite subsection (1), the Registrar must not amend:
(a) any representations included in the design application; or
(b) any other documents accompanying the design application;
in so far as they define a design disclosed in the design application,
in such a way as to alter the scope of the application by the
inclusion of matter which was not in substance disclosed in the
original design application, representations or other documents.
(4) In this section:
amend, in relation to a representation of a design disclosed in a
design application, includes the substitution of one representation
for another representation.
(5) An appeal lies to the Federal Court or the Federal Circuit Court
against a decision of the Registrar under this section.
29 Disputes between applicants
(1) This section applies if a dispute arises between 2 or more persons
in relation to whether, or in what manner, a design application
should proceed.
(2) The Registrar may, on a request made in accordance with the
regulations by any of the persons, make any determinations the
Registrar thinks fit for either or both of the following purposes:
ComLaw Authoritative Act C2015C00043
Design applications Chapter 3
Amendment or withdrawal of design applications Part 3
Section 30
Designs Act 2003 25
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
(a) enabling the application to specify which of those persons is
an entitled person in relation to a design disclosed in the
application;
(b) regulating the manner in which the application is to proceed.
(3) A person mentioned in subsection (1) or (2) must be:
(a) the applicant; or
(b) a person who asserts that the person is an entitled person in
relation to a design disclosed in the application.
30 Persons may ask for design application to proceed in the person’s
name
(1) A person may ask the Registrar to direct that a design application
specify the person as:
(a) an applicant; or
(b) an entitled person in relation to a design disclosed in the
application.
(2) The Registrar may give the direction if the person would, if the
design were registered, be entitled under an assignment or
agreement, or by operation of law, to:
(a) the registered design or an interest in it; or
(b) an undivided share in the registered design or in such an
interest.
(3) If the Registrar gives the direction:
(a) the person is taken to be an applicant or an entitled person in
relation to the design, as the case requires; and
(b) the application is taken to be amended accordingly.
(4) A request under subsection (1) must be in accordance with the
regulations.
ComLaw Authoritative Act C2015C00043
Chapter 3 Design applications
Part 3 Amendment or withdrawal of design applications
Section 31
26 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
31 Publication of certain details of amended application
The Registrar must publish the details prescribed by the regulations
in relation to a design application amended by the Registrar under
this Part.
32 Withdrawal of designs and design applications
(1) A person who has filed a design application may withdraw the
application by written notice filed within the period prescribed by
the regulations.
(2) A person who has filed a design application in respect of more than
one design may withdraw one or more of those designs from the
application by written notice filed within the period prescribed by
the regulations.
(3) If the design application was filed by more than one person, the
notice is not effective unless each of them consented to the giving
of the notice.
(4) If a design is withdrawn from a design application, the person or
persons who withdrew the design may not subsequently request
registration or publication of the design under Part 2 of Chapter 4
unless the person makes another application in respect of the
design under section 21.
ComLaw Authoritative Act C2015C00043
Design applications Chapter 3
Lapsing of design applications Part 4
Section 33
Designs Act 2003 27
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Part 4—Lapsing of design applications
33 Lapsing of design applications
(1) A design application lapses if:
(a) a request to register or publish each design disclosed in the
application has not been made, in accordance with Part 2 of
Chapter 4, within the period prescribed by the regulations; or
(b) the Registrar has given the applicant a notice under
section 41 or 57 in respect of the application, and the
applicant has not, within the period prescribed by the
regulations:
(i) requested that the application be amended; or
(ii) responded in writing to the notice as mentioned in
subparagraph 41(c)(ii) or 57(3)(c)(ii), as the case
requires;
in such a way that the Registrar is satisfied that the
application meets the applicable requirements of Chapter 4.
(2) If the Registrar has, under section 137, extended a period within
which a thing mentioned in subsection (1) is to be done, a
reference in subsection (1) to a period is a reference to the
extended period.
(3) For the purposes of paragraph (1)(a), each design disclosed in the
application does not include the following:
(a) a design excluded from the application by an amendment
under section 28;
(b) a design withdrawn from the application under
subsection 32(2).
(4) The Registrar must publish a notice stating that a design
application has lapsed under subsection (1). The notice must be in
the form prescribed by the regulations.
ComLaw Authoritative Act C2015C00043
Chapter 4 Registration or publication of designs
Part 1 Simplified outline of Chapter 4
Section 34
28 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Chapter 4—Registration or publication of
designs
Part 1—Simplified outline of Chapter 4
34 Simplified outline
The following is a simplified outline of this Chapter:
Part 2 permits an applicant to request registration or publication of
all or any of the designs disclosed in a design application.
The Registrar must register or publish the designs under Part 3 or 4
if specified requirements are satisfied.
The Registrar must refuse to register certain designs (see
section 43).
Registration of a design is for a maximum of 10 years (see
Division 3 of Part 3).
The registration of a design may be revoked on grounds relating to
entitled persons (see Division 4 of Part 3).
Registered designs and associated documents are open for public
inspection (see Part 5).
ComLaw Authoritative Act C2015C00043
Registration or publication of designs Chapter 4
Requests for registration or publication Part 2
Section 35
Designs Act 2003 29
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Part 2—Requests for registration or publication
35 Request for registration or publication
(1) An applicant may request registration or publication of one or more
designs disclosed in a design application.
(2) The request must be:
(a) included in the design application; or
(b) made within the period prescribed by the regulations (but see
sections 37 and 38).
(3) The request must be in accordance with any requirements
prescribed by the regulations.
36 Request for registration or publication—applications in respect
of more than one design
(1) If more than one design is disclosed in a design application, a
request under section 35:
(a) may be in respect of one or more of those designs; and
(b) may be for registration of some of the designs and
publication of others.
(2) However, if an applicant makes a request in respect of only some
of the designs disclosed in the design application, the following
rules apply:
(a) the applicant may not subsequently make a request for
registration of the designs in respect of which no request for
registration was made, unless the Registrar determines, in
accordance with the regulations, that the applicant may make
such a request;
(b) the applicant may subsequently make a request for
publication of the designs in respect of which no request was
made.
ComLaw Authoritative Act C2015C00043
Chapter 4 Registration or publication of designs
Part 2 Requests for registration or publication
Section 37
30 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
37 Request in respect of designs excluded from an application in
respect of more than one design
A design application in respect of designs excluded from an initial
application must include a request for registration or publication of
all the designs disclosed in the application.
38 Replacement of request for registration with request for
publication
(1) If an applicant has requested registration of a design under
section 35, the applicant may replace the request for registration
with a request for publication of the design by giving written notice
to the Registrar.
(2) The request is to be made within the period prescribed by the
regulations.
(3) However, an applicant may not replace a request for publication of
a design with a request for registration of the design.
ComLaw Authoritative Act C2015C00043
Registration or publication of designs Chapter 4
Registration Part 3
Formalities check Division 1
Section 39
Designs Act 2003 31
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Part 3—Registration
Division 1—Formalities check
39 Formalities check—applications in respect of one design only
(1) This section applies to a design disclosed in a design application if:
(a) the design is the only design disclosed in the application; and
(b) the applicant has requested that the design be registered.
(2) The Registrar must register the design if the Registrar is satisfied
that:
(a) the design application satisfies the formalities check
specified in the regulations; and
(b) if the design is purportedly a common design in relation to
more than one product—that the design is a common design
in relation to each product; and
(c) the Registrar is not required to refuse to register the design
under subsection 43(1).
40 Formalities check—applications in respect of more than one
design
(1) This section applies if:
(a) more than one design is disclosed in a design application; and
(b) the applicant has requested registration of one or more of
those designs.
(2) The Registrar must register a design requested to be registered if
the Registrar is satisfied of the following:
(a) that each product to which the design relates belongs to the
same Locarno Agreement class;
(b) if the design requested to be registered is purportedly a
common design in relation to more than one product—that
the design is a common design in relation to each product;
ComLaw Authoritative Act C2015C00043
Chapter 4 Registration or publication of designs
Part 3 Registration
Division 1 Formalities check
Section 41
32 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
(c) that the design application satisfies the formalities check
specified in the regulations;
(d) that the Registrar is not required to refuse to register the
design under subsection 43(1).
41 Registrar must give applicants an opportunity to correct
deficiencies
If the Registrar is not satisfied as mentioned in section 39 or 40 in
relation to a design application, the Registrar must give a written
notice to the applicant stating:
(a) the matters in relation to which the Registrar is not satisfied;
and
(b) that the applicant may request that the Registrar amend the
application under section 28; and
(c) that the application will lapse at the end of the period
prescribed by the regulations for the purposes of
paragraph 33(1)(b) unless, during that period:
(i) the application is amended; or
(ii) the applicant responds in writing to the notice stating
why the applicant considers that the application does not
need to be amended;
and as a result of the amendment or response, the Registrar is
satisfied as mentioned in section 39 or 40, as the case
requires.
42 What happens after Registrar gives notice under section 41
(1) This section applies if the Registrar has given a written notice to an
applicant under section 41.
(2) If the applicant requests that the Registrar amend the application,
the Registrar must consider the request under section 28.
(3) If the applicant responds in writing to the notice as mentioned in
subparagraph 41(c)(ii), the Registrar must consider the response.
ComLaw Authoritative Act C2015C00043
Registration or publication of designs Chapter 4
Registration Part 3
Formalities check Division 1
Section 43
Designs Act 2003 33
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
(4) If, after considering the request or response, the Registrar is
satisfied as mentioned in section 39 or 40 in relation to the design
application, the Registrar must register the design or designs
disclosed in the application under whichever of those sections
applies.
(5) If, after considering the request or response, the Registrar is not
satisfied as mentioned in section 39 or 40 in relation to the design
application, the Registrar may either:
(a) refuse to register the design or designs under section 43; or
(b) give a further notice to the applicant under section 41.
43 Registrar must refuse to register certain designs
(1) The Registrar must refuse to register a design if:
(a) the design is a design, or belongs to a class of designs,
prescribed by the regulations for the purposes of this
paragraph; or
(b) the Registrar must not register the design because of
section 18 of the Olympic Insignia Protection Act 1987; or
(c) the design is in relation to a product that is:
(i) an integrated circuit within the meaning of the Circuit
Layouts Act 1989; or
(ii) part of such an integrated circuit; or
(iii) a mask used to make such an integrated circuit; or
(d) the design is subject to an order under section 108.
(2) Subject to section 42, the Registrar must refuse to register a design
disclosed in a design application in respect of which the Registrar
has given a notice under section 41, if the applicant has not:
(a) amended the application; or
(b) responded in writing to the notice stating why the applicant
considers that the application does not need to be amended;
in such a way that the Registrar is satisfied as mentioned in
section 39 or 40 in relation to the design application.
ComLaw Authoritative Act C2015C00043
Chapter 4 Registration or publication of designs
Part 3 Registration
Division 1 Formalities check
Section 44
34 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
(3) The Registrar must notify the applicant in writing of a refusal
under subsection (1) or (2). The notice must set out the reasons for
the refusal.
44 Registrar must register certain designs after refusal
Despite paragraph 43(1)(d), if:
(a) the Registrar refuses to register a design because the design is
subject to an order under section 108; and
(b) the order is later revoked; and
(c) at the date of the revocation of the order, the design would,
but for the operation of section 108, have been registered;
the Registrar must register the design within the period prescribed
by the regulations.
ComLaw Authoritative Act C2015C00043
Registration or publication of designs Chapter 4
Registration Part 3
Registration procedures Division 2
Section 45
Designs Act 2003 35
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Division 2—Registration procedures
45 Registrar must notify applicant of registration and give public
notice
(1) This section applies if the Registrar is required to register a design
under this Act.
(2) The Registrar must enter in the Register the particulars mentioned
in section 111, to the extent that they are applicable.
(3) The Registrar must issue a certificate of registration to the
applicant. The certificate must be in the form prescribed by the
regulations.
(4) The Registrar must publish a notice stating that the design has been
registered. The notice must be in the form prescribed by the
regulations.
ComLaw Authoritative Act C2015C00043
Chapter 4 Registration or publication of designs
Part 3 Registration
Division 3 Term of registration
Section 46
36 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Division 3—Term of registration
46 Term of registration
(1) The term of registration of a design is:
(a) 5 years from the filing date of the design application in which
the design was first disclosed; or
(b) if the registration of the design is renewed under section 47—
10 years from the filing date of the design application in
which the design was first disclosed.
(2) If a design has been excluded from an initial application (see
section 23), the design application in which the design was first
disclosed is taken, for the purposes of subsection (1), to be the
initial application.
47 Renewal of registration
(1) The registered owner of a registered design may apply for renewal
of the registration of the design.
(2) The application must be made within the prescribed period after
the filing date of the design application in which the design was
first disclosed.
(3) The Registrar must renew the registration of the design if the
application is in the form prescribed by the regulations.
48 Ceasing of registration
(1) The registration of a design ceases if an examination of the design
has been requested and:
(a) within the period prescribed for the purposes of
paragraph 65(3)(b), the Registrar is not satisfied as
mentioned in paragraph 67(1)(a) or 68(1)(a); or
ComLaw Authoritative Act C2015C00043
Registration or publication of designs Chapter 4
Registration Part 3
Term of registration Division 3
Section 49
Designs Act 2003 37
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
(b) the registered owner of the design has not paid the prescribed
fee for the examination by the end of the period prescribed
for payment.
(2) The registration of a design also ceases at the end of the period
mentioned in paragraph 46(1)(a) or (b), as the case requires.
(3) If:
(a) a registered design was, at the time of registration, a
corresponding design in relation to an artistic work in which
copyright subsisted under the Copyright Act 1968; and
(b) the design would not have been registered under this Act
apart from section 18; and
(c) the copyright in the artistic work under the Copyright Act
1968 expires before the date on which registration of the
design would (apart from this subsection) cease to be in
force;
the registration of the design ceases at the same time as the expiry
of the copyright in the artistic work, and must not be extended after
that time.
(4) If the registration of a design ceases under subsection (1), any
certificate of examination that was in force in respect of the design
at the time the registration ceased is taken to be revoked at that
time.
49 Surrender of registration
(1) The registered owner of a registered design may offer to surrender
the registration of the design.
(2) If there is more than one registered owner of the design, an offer
under subsection (1) must be made by all the registered owners.
(3) An offer under subsection (1):
(a) may be made at any time; and
(b) must be in writing and filed; and
(c) must be made in a form prescribed by the regulations.
ComLaw Authoritative Act C2015C00043
Chapter 4 Registration or publication of designs
Part 3 Registration
Division 3 Term of registration
Section 50
38 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
50 Revocation of registration on surrender
(1) This section applies if the Registrar receives an offer to surrender
the registration of a design under subsection 49(1).
(2) The Registrar must:
(a) notify the persons prescribed by the regulations of the offer;
and
(b) give such persons an opportunity to make submissions in the
manner, and within the period, prescribed by the regulations.
(3) The Registrar may accept the offer, revoke the registration of the
design and make an entry in the Register under section 115 after
doing the things mentioned in subsection (2).
(4) If proceedings in a court have been brought and not completed in
relation to the design, the Registrar must not accept the offer to
surrender the registration of the design unless:
(a) the court consents; or
(b) all the parties to the proceedings consent.
(5) If a compulsory licence is in force in relation to the design, the
Registrar must not accept the offer to surrender the registration of
the design.
(6) An appeal lies to the Federal Court or the Federal Circuit Court
against a decision of the Registrar under this section.
ComLaw Authoritative Act C2015C00043
Registration or publication of designs Chapter 4
Registration Part 3
Revocation on grounds relating to entitled persons Division 4
Section 51
Designs Act 2003 39
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Division 4—Revocation on grounds relating to entitled
persons
51 Revocation of registration on grounds relating to entitled persons
(1) A person may apply to the Registrar for revocation under
section 52 of the registration of a design.
(2) An application under subsection (1) must:
(a) contain the information prescribed by the regulations; and
(b) be made in the manner prescribed by the regulations.
52 Procedures in relation to application
(1) This section applies if a person makes an application under
section 51 for revocation of the registration of a design.
(2) If the Registrar is satisfied that:
(a) a person or persons were entitled persons at the time the
design was first registered, and one or more of the original
registered owners of the design was not an entitled person at
that time; or
(b) each original registered owner of the design was an entitled
person at the time when the design was first registered, but
another person or persons were also entitled persons at that
time;
the Registrar may make a written declaration specifying that a
person whom the Registrar is satisfied was an entitled person at the
time the design was first registered is an entitled person under this
subsection.
(3) If the Registrar makes a declaration under subsection (2), the
Registrar must:
(a) give the relevant parties a notice stating that the registration
of the design is revoked; and
(b) make an entry in the Register under section 115.
ComLaw Authoritative Act C2015C00043
Chapter 4 Registration or publication of designs
Part 3 Registration
Division 4 Revocation on grounds relating to entitled persons
Section 53
40 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
(4) The Registrar must also publish a notice, in the form prescribed by
the regulations, stating that the registration of the design has been
revoked and that the design is taken never to have been registered.
(5) The Registrar must not revoke the registration of a design under
this section unless the Registrar has given each original registered
owner a reasonable opportunity to be heard.
(6) The Registrar must not revoke the registration of a design under
this section while relevant proceedings in relation to that design are
pending.
(7) An appeal lies to the Federal Court or the Federal Circuit Court
against a decision of the Registrar under this section.
53 Applications by persons declared to be entitled persons in court
proceedings
(1) This section applies if, in any proceedings in a court in relation to a
design, the court is satisfied either:
(a) that a person or persons were entitled persons at the time the
design was first registered, and one or more of the original
registered owners of the design was not an entitled person at
that time; or
(b) that each original registered owner of the design was an
entitled person at the time the design was first registered, but
that another person or persons were also entitled persons at
that time.
(2) In addition to any other order it may make in the proceedings, the
court may declare that a person whom the court is satisfied was an
entitled person at the time the design was first registered is an
entitled person under this subsection.
(3) The court may not make an order under subsection (2) unless the
registration of the design has been revoked.
ComLaw Authoritative Act C2015C00043
Registration or publication of designs Chapter 4
Registration Part 3
Revocation on grounds relating to entitled persons Division 4
Section 54
Designs Act 2003 41
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
54 Applications by entitled persons after revocation following
surrender of registration
(1) This section applies if:
(a) the Registrar revokes the registration of a design under
section 50; and
(b) the Registrar is satisfied on application by one or more
persons in accordance with the regulations:
(i) that one or more of the original registered owners was
not an entitled person at the time the design was first
registered, and another person or persons were entitled
persons at that time; or
(ii) that each original registered owner of the design was an
entitled person at the time the design was first
registered, but another person or persons were entitled
persons at that time.
(2) The Registrar may make a written declaration specifying that a
person whom the Registrar is satisfied was an entitled person at the
time the design was first registered is an entitled person under this
subsection.
(3) The Registrar must not make a declaration under subsection (2)
without first giving each original registered owner a reasonable
opportunity to be heard.
(4) An appeal lies to the Federal Court or the Federal Circuit Court
against a decision of the Registrar to make, or refuse to make, a
declaration under subsection (2).
55 Priority date of design if an application filed by a person declared
to be an entitled person
One or more persons declared to be entitled persons in relation to a
design under section 52, 53 or 54 may file an application in respect
of the design under section 21, and if they do so, the design has the
same priority date as it had in the application in which it was first
disclosed.
ComLaw Authoritative Act C2015C00043
Chapter 4 Registration or publication of designs
Part 3 Registration
Division 4 Revocation on grounds relating to entitled persons
Section 56
42 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
56 Meaning of original registered owner
In this Division:
original registered owner, in relation to a design, means each
person entered in the Register as the registered owner at the time
the design was first registered.
ComLaw Authoritative Act C2015C00043
Registration or publication of designs Chapter 4
Publication Part 4
Section 57
Designs Act 2003 43
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Part 4—Publication
57 Publication of a design
(1) This section applies to a design disclosed in a design application if
the applicant has requested under section 35, 36, 37 or 38 that the
design be published.
(2) The Registrar must publish the design if the Registrar is satisfied
that the documents provided with the design application satisfy any
requirements in relation to publication that are prescribed by the
regulations.
(3) If the Registrar is not satisfied as mentioned in subsection (2), the
Registrar must give a written notice to the applicant stating:
(a) the matters in relation to which the Registrar is not satisfied;
and
(b) that the applicant may amend the design application under
section 28; and
(c) that the application will lapse at the end of the period
prescribed by the regulations for the purposes of
paragraph 33(1)(b) unless, during that period:
(i) the application is amended; or
(ii) the applicant responds in writing to the notice stating
why the applicant considers that the application does not
need to be amended;
and as a result of the amendment or response, the Registrar is
satisfied as mentioned in subsection (2).
58 What happens after Registrar gives notice under section 57
(1) This section applies if the Registrar has given a written notice to an
applicant under subsection 57(3).
(2) If the applicant requests that the Registrar amend the application,
the Registrar must consider the request under section 28.
ComLaw Authoritative Act C2015C00043
Chapter 4 Registration or publication of designs
Part 4 Publication
Section 59
44 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
(3) If the applicant responds in writing to the notice as mentioned in
subparagraph 57(3)(c)(ii), the Registrar must consider the
response.
(4) If, after considering the request or response, the Registrar is
satisfied as mentioned in subsection 57(2), the Registrar must
publish the design or designs under that subsection.
(5) If, after considering the request or response, the Registrar is not
satisfied as mentioned in subsection 57(2), the Registrar may
either:
(a) refuse to publish the design under section 59; or
(b) give a further notice to the applicant under subsection 57(3).
59 Refusal to publish
(1) Subject to section 58, the Registrar must refuse to publish a design
if:
(a) the design is disclosed in a design application in respect of
which the Registrar has given notice under subsection 57(3);
and
(b) the applicant has not responded to the notice or amended the
application in such a way that the Registrar is satisfied as
mentioned in subsection 57(2).
(2) The Registrar must notify the applicant in writing of a refusal
under subsection (1). The notice must set out the reasons for the
refusal.
ComLaw Authoritative Act C2015C00043
Registration or publication of designs Chapter 4
Certain documents to be available for public inspection Part 5
Section 60
Designs Act 2003 45
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Part 5—Certain documents to be available for
public inspection
60 Design applications for registered designs and associated
documents to be open for public inspection
(1) After a design is registered or published, the Registrar must make
the following documents available for public inspection:
(a) the design application in which the design was disclosed;
(b) any representations that were included in the design
application;
(c) any statement of newness and distinctiveness in respect of
the design that was included in the application;
(d) any document filed in relation to the design (whether before
or after its registration or publication);
(e) any document sent by the Registrar to the applicant or the
registered owner in connection with the design (whether
before or after its registration or publication);
(f) any other document relating to the design application that is
in, or comes into, the possession of the Designs Office;
(g) any other document prescribed by the regulations.
(2) Despite subsection (1), the following documents are not to be made
available for public inspection:
(a) a document that would be privileged from production in legal
proceedings on the ground of legal professional privilege;
(b) a document that is subject to an order of a court or tribunal
that prohibits disclosure of the document or information in
the document;
(c) a document required to be produced under
paragraph 127(1)(c), if the Registrar is satisfied that the
document, or information in the document, should not be
open for public inspection;
ComLaw Authoritative Act C2015C00043
Chapter 4 Registration or publication of designs
Part 5 Certain documents to be available for public inspection
Section 61
46 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
(d) a document that contains information obtained from a
document to which any of paragraph (a), (b) or (c) applies.
(3) If a document mentioned in subsection (1) has been amended, the
document before and after amendment is to be made available for
public inspection.
(4) However, if:
(a) more than one design was disclosed in the design application;
and
(b) any of the following apply:
(i) the application was amended to exclude one or more of
the designs;
(ii) one or more of the designs was withdrawn from the
application;
(iii) one or more of the designs was neither registered nor
published;
the designs that were excluded or withdrawn, or that were not
registered or published, and any documents, or parts of documents,
mentioned under paragraphs 60(1)(b) to (g) relating exclusively to
those designs, are not to be made available for public inspection
under subsection (1).
61 Certain documents not to be published
(1) Except as otherwise provided by this Act, documents of the kind
mentioned in subsection 60(1), other than documents prescribed by
the regulations for the purposes of paragraph 60(1)(g):
(a) must not be published or be open to public inspection; and
(b) are not liable to be inspected or produced before the Registrar
or in a legal proceeding unless the Registrar, court, or any
person having power to order inspection or production,
directs that the inspection or production be allowed.
(2) Notice of an application for the production in legal proceedings of
a document of the kind mentioned in subsection (1) must be given
to the Registrar, who is entitled to be heard on the application.
ComLaw Authoritative Act C2015C00043
Registration or publication of designs Chapter 4
Certain documents to be available for public inspection Part 5
Section 61
Designs Act 2003 47
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
(3) Subsection (1) does not prevent documents of the kind mentioned
in subsection 60(1) from being made available to an applicant for
registration or publication of the design to which the documents
relate.
ComLaw Authoritative Act C2015C00043
Chapter 5 Examination of designs
Part 1 Simplified outline of Chapter 5
Section 62
48 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Chapter 5—Examination of designs
Part 1—Simplified outline of Chapter 5
62 Simplified outline
The following is a simplified outline of this Chapter:
Chapter 5 deals with the examination of designs by the Registrar.
Designs may be examined after registration on the request of any
person or on the Registrar’s initiative.
In examining a design, the Registrar must consider whether there
are grounds for revoking the registration of the design.
ComLaw Authoritative Act C2015C00043
Examination of designs Chapter 5
Requests for examination Part 2
Section 63
Designs Act 2003 49
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Part 2—Requests for examination
63 Examination of design
(1) The Registrar must examine a design that has at any time been a
registered design if any person requests, or a court orders, that the
Registrar examine the design.
(2) The Registrar may, on the Registrar’s initiative and at any time,
examine a design that has at any time been a registered design.
(3) If relevant proceedings in relation to a design are pending in a
court, the Registrar must not examine the design unless the court
orders that the Registrar examine the design.
(4) If:
(a) the Registrar has started to examine a design; and
(b) relevant proceedings in relation to the design are started;
the Registrar must not continue to examine the design (including
considering a request for amendments under section 66) unless a
court orders that the Registrar continue to examine the design.
(5) For the purposes of this section, the expression a design that has at
any time been a registered design:
(a) does not include a design whose registration has ceased
because of the operation of subsection 48(1); and
(b) does not include a design whose registration has been
revoked, unless a declaration of the entitled persons has been
made under section 52, 53 or 54 in relation to the design.
64 Requirements for request for examination of design
(1) A request by a person that the Registrar examine a registered
design must satisfy any requirements prescribed by the regulations.
(2) The request may contain material in relation to the newness and
distinctiveness of the design.
ComLaw Authoritative Act C2015C00043
Chapter 5 Examination of designs
Part 2 Requests for examination
Section 64
50 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
(3) The Registrar must make available for public inspection material
contained in a request under this section in relation to the newness
and distinctiveness of the design to which the request relates.
ComLaw Authoritative Act C2015C00043
Examination of designs Chapter 5
Examination Part 3
Section 65
Designs Act 2003 51
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Part 3—Examination
65 What Registrar must do in examining a design
(1) If the Registrar receives a request to examine a registered design,
or decides to examine a registered design, the Registrar must
consider whether a ground for revocation under subsection (2)
exists.
(2) The following are grounds for revocation of the registration of a
design for the purposes of this Part:
(a) the design is not a registrable design;
(b) any other ground prescribed by the regulations.
(3) The examination must be:
(a) conducted in accordance with the procedures prescribed by
the regulations; and
(b) completed within the period prescribed by the regulations.
66 Amendment of registration
(1) This section applies if the Registrar is satisfied, in the course of
examining a registered design, that a ground for revocation of the
registration of the design has been made out.
(2) The Registrar must give written notice to that effect to the
registered owner of the design.
(3) The registered owner of the design may request that the Registrar
amend the Register in such a way that the ground for revocation is
removed.
(4) A request under subsection (3) must be made in the manner
prescribed by the regulations.
(5) The Registrar must consider and deal with the request in the
manner prescribed by the regulations.
ComLaw Authoritative Act C2015C00043
Chapter 5 Examination of designs
Part 3 Examination
Section 67
52 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
(6) An amendment must not be such as to:
(a) increase the scope of the design registration; or
(b) alter the scope of the registration by the inclusion of matter
that was not in substance disclosed in the original design
application, representations or other documents.
67 Certificate of examination where registration valid
(1) This section applies in relation to a registered design if:
(a) the Registrar has examined the design and is satisfied that a
ground for revocation of the registration of the design has not
been made out, or that any such ground would be removed if
the Register were amended as proposed in a request made
under section 66; and
(b) the registration of the design has not ceased under
subsection 48(1).
(2) The Registrar must give the relevant parties a notice stating:
(a) that the design has been examined; and
(b) if the Registrar is satisfied that a ground of revocation could
be removed if the Register were amended as proposed in a
request made under section 66—the details of the proposed
amendments; and
(c) that a certificate of examination is to be issued.
(3) If the Registrar remains satisfied as mentioned in paragraph (1)(a)
after giving the relevant parties a reasonable opportunity to be
heard, the Registrar must:
(a) issue a certificate of examination, in the form prescribed by
the regulations, to the registered owner of the design; and
(b) record on the Register the issue of that certificate and, if
applicable, such amendments proposed in a request made
under section 66 that the Registrar is satisfied would remove
a ground of revocation; and
(c) publish a notice, in the form prescribed by the regulations,
stating:
ComLaw Authoritative Act C2015C00043
Examination of designs Chapter 5
Examination Part 3
Section 68
Designs Act 2003 53
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
(i) that an examination of the design has been completed;
and
(ii) that infringement proceedings under Chapter 6 may be
commenced.
(4) An appeal lies to the Federal Court or the Federal Circuit Court
against a decision of the Registrar under this section.
68 Revocation of registration after examination
(1) This section applies in relation to a registered design if:
(a) the Registrar has examined the design, and is satisfied that a
ground for revocation of the registration of the design has
been made out and the ground would not be removed if the
Register were amended as proposed in a request under
section 66; and
(b) the registration of the design has not ceased under
subsection 48(1).
(2) The Registrar must:
(a) give the relevant parties a notice stating that the registration
of the design is revoked; and
(b) make an entry in the Register under section 115.
(3) The Registrar must also publish a notice, in the form prescribed by
the regulations, stating that the registration of the design has been
revoked and that the design is taken never to have been registered.
(4) The Registrar must not revoke the registration of a design under
this section unless:
(a) the Registrar has given the registered owner a reasonable
opportunity to be heard; and
(b) if appropriate, the Registrar has given the registered owner a
reasonable opportunity to amend the relevant registered
design for the purpose of removing a ground for the
revocation of the registration of the design and the registered
owner has failed to do so.
ComLaw Authoritative Act C2015C00043
Chapter 5 Examination of designs
Part 3 Examination
Section 68
54 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
(5) The Registrar must not revoke the registration of a design under
this section while relevant proceedings in relation to that design are
pending.
(6) An appeal lies to the Federal Court or the Federal Circuit Court
against a decision of the Registrar under this section.
ComLaw Authoritative Act C2015C00043
Examination of designs Chapter 5
Material may be provided to Registrar Part 4
Section 69
Designs Act 2003 55
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Part 4—Material may be provided to Registrar
69 Certain material may be provided to Registrar
(1) A person may provide to the Registrar material relating to whether
a registered design is new or distinctive within the meaning of
Division 1 of Part 4 of Chapter 2. The material may be provided
even if the person has not made a request under subsection 63(1)
that the design be examined.
(2) The material is to be provided in accordance with the regulations.
(3) If a person provides material to the Registrar under subsection (1),
the Registrar must:
(a) inform the registered owner of the design that the material
has been provided; and
(b) provide a copy of the material to the registered owner of the
design.
(4) Nothing in this section is to be taken to require the Registrar to
examine a design under Part 3.
(5) The Registrar must make a copy of material provided to the
Registrar under subsection (1) available for public inspection.
ComLaw Authoritative Act C2015C00043
Chapter 6 Infringement
Part 1 Simplified outline of Chapter 6
Section 70
56 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Chapter 6—Infringement
Part 1—Simplified outline of Chapter 6
70 Simplified outline
The following is a simplified outline of this Chapter:
Chapter 6 is about infringement.
Part 2 provides that a person infringes a registered design if,
without the appropriate authority, the person deals in certain ways
with a product that embodies the design, or a design that is
substantially similar to it.
Part 2 also provides that the registered owner of a design may bring
infringement proceedings. The defendant may counter-claim for
rectification of the Register.
Various remedies are available, including injunction, damages or
an account of profits.
Part 3 deals with unjustified threats of infringement proceedings.
ComLaw Authoritative Act C2015C00043
Infringement Chapter 6
Infringement of registered design Part 2
Section 71
Designs Act 2003 57
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Part 2—Infringement of registered design
71 Infringement of design
(1) A person infringes a registered design if, during the term of
registration of the design, and without the licence or authority of
the registered owner of the design, the person:
(a) makes or offers to make a product, in relation to which the
design is registered, which embodies a design that is identical
to, or substantially similar in overall impression to, the
registered design; or
(b) imports such a product into Australia for sale, or for use for
the purposes of any trade or business; or
(c) sells, hires or otherwise disposes of, or offers to sell, hire or
otherwise dispose of, such a product; or
(d) uses such a product in any way for the purposes of any trade
or business; or
(e) keeps such a product for the purpose of doing any of the
things mentioned in paragraph (c) or (d).
(2) Despite subsection (1), a person does not infringe a registered
design if:
(a) the person imports a product, in relation to which the design
is registered, which embodies a design that is identical to, or
substantially similar in overall impression to, the registered
design; and
(b) the product embodies the design with the licence or authority
of the registered owner of the design.
(3) In determining whether an allegedly infringing design is
substantially similar in overall impression to the registered design,
a court is to consider the factors specified in section 19.
(4) Infringement proceedings must be started within 6 years from the
day on which the alleged infringement occurred.
ComLaw Authoritative Act C2015C00043
Chapter 6 Infringement
Part 2 Infringement of registered design
Section 72
58 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
72 Certain repairs do not infringe registered design
(1) Despite subsection 71(1), a person does not infringe a registered
design if:
(a) the person uses, or authorises another person to use, a
product:
(i) in relation to which the design is registered; and
(ii) which embodies a design that is identical to, or
substantially similar in overall impression to, the
registered design; and
(b) the product is a component part of a complex product; and
(c) the use or authorisation is for the purpose of the repair of the
complex product so as to restore its overall appearance in
whole or part.
(2) If:
(a) a person uses or authorises another person to use a product:
(i) in relation to which a design is registered; and
(ii) which embodies a design that is identical to, or
substantially similar in overall impression to, the
registered design; and
(b) the person asserts in infringement proceedings that, because
of the operation of subsection (1), the use or authorisation did
not infringe the registered design;
the registered owner of the design bears the burden of proving that
the person knew, or ought reasonably to have known, that the use
or authorisation was not for the purpose mentioned in
paragraph (1)(c).
(3) For the purposes of subsection (1):
(a) a repair is taken to be so as to restore the overall appearance
of a complex product in whole if the overall appearance of
the complex product immediately after the repair is not
materially different from its original overall appearance; and
(b) a repair is taken to be so as to restore the overall appearance
of a complex product in part if any material difference
between:
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(i) the original overall appearance of the complex product;
and
(ii) the overall appearance of the complex product
immediately after the repair;
is solely attributable to the fact that only part of the complex
product has been repaired.
(4) In applying subsection (3), a court must apply the standard of the
informed user.
(5) In this section:
repair, in relation to a complex product, includes the following:
(a) restoring a decayed or damaged component part of the
complex product to a good or sound condition;
(b) replacing a decayed or damaged component part of the
complex product with a component part in good or sound
condition;
(c) necessarily replacing incidental items when restoring or
replacing a decayed or damaged component part of the
complex product;
(d) carrying out maintenance on the complex product.
standard of the informed user, in relation to the overall
appearance of a complex product, means the standard of a person
who is familiar with the complex product, or with products similar
to that product.
use, in relation to a product, means:
(a) to make or offer to make the product; or
(b) to import the product into Australia for sale, or for use for the
purposes of any trade or business; or
(c) to sell, hire or otherwise dispose of, or offer to sell, hire or
otherwise dispose of, the product; or
(d) to use the product in any other way for the purposes of any
trade or business; or
(e) to keep the product for the purpose of doing any of the things
mentioned in paragraph (c) or (d).
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Part 2 Infringement of registered design
Section 73
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73 Infringement proceedings
(1) The registered owner of a registered design may bring proceedings
against another person alleging that the person has infringed the
registered design.
(2) Infringement proceedings may be brought in a prescribed court or
in another court that has jurisdiction in relation to the proceedings.
(3) However, infringement proceedings may not be brought under
subsection (1) until:
(a) the design has been examined under Chapter 5; and
(b) a certificate of examination has been issued.
(4) If a person files an application under section 21 for registration of a
design as a result of the operation of section 55, the person may
only bring infringement proceedings in respect of infringements of
the design occurring after the date on which the application was
filed under section 21.
74 Counter-claims
A defendant in infringement proceedings in respect of a registered
design may apply, by way of counter-claim in the proceedings, for
the revocation of the registration of the design under section 93.
75 Remedies for infringement
(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.
(2) 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:
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(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.
(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.
(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.
(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).
76 Intervention by Registrar
A court may grant the Registrar leave to intervene in infringement
proceedings.
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Part 3 Relief from unjustified threats
Section 77
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Part 3—Relief from unjustified threats
77 Application for relief from unjustified threats
(1) If a person is threatened by another person (the respondent) with
infringement proceedings, or other similar proceedings, in respect
of a design, an aggrieved person (the applicant) may apply to a
prescribed court, or to another court that has jurisdiction to hear
and determine the application, for:
(a) a declaration that the threats are unjustified; and
(b) an injunction against the continuation of the threats; and
(c) the recovery of damages sustained by the applicant as a result
of the threats.
(2) A threat mentioned in subsection (1) may be by means of circulars,
advertisements or otherwise.
(3) If a certificate of examination has not been issued in respect of a
design, a threat to bring infringement proceedings, or other similar
proceedings, in respect of the design is an unjustified threat for the
purposes of this section.
78 Court’s power to grant relief
A court may grant the relief sought by an applicant under
section 77, unless the respondent satisfies the court that:
(a) the design concerned is registered, has been examined and a
certificate of examination has been issued; and
(b) the acts about which the threats were made infringe, or would
infringe, the registered design.
79 Counter-claim
(1) The respondent in proceedings under section 77 in respect of a
design may apply, by way of counter-claim, for relief to which the
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respondent would be entitled in separate infringement proceedings
against the applicant in respect of the design.
(2) If the respondent applies under subsection (1) by way of
counter-claim, the applicant may, without making a separate
application under section 93, apply for revocation of the
registration of the design.
(3) The provisions of this Act relating to infringement proceedings
apply, with the necessary modifications, to a counter-claim under
subsection (1).
(4) The provisions of this Act relating to proceedings for the
revocation of the registration of a design apply, with the necessary
modifications, to an application under subsection (2).
80 Mere notification of registration not a threat
The mere notification of the existence of a registered design does
not constitute a threat of infringement proceedings for the purposes
of section 77.
81 Legal practitioners, registered patent attorneys and registered
trade marks attorneys
A legal practitioner, a registered patent attorney or a registered
trade marks attorney is not liable to proceedings under section 77
in respect of an act done in a professional capacity on behalf of a
client.
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Chapter 7 Jurisdiction and powers of courts
Part 1 Simplified outline of Chapter 7
Section 82
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Chapter 7—Jurisdiction and powers of courts
Part 1—Simplified outline of Chapter 7
82 Simplified outline
The following is a simplified outline of this Chapter:
Chapter 7 deals with the jurisdiction of courts.
Under Part 2, the Federal Court and the Federal Circuit Court are
given jurisdiction in relation to matters arising under the Act. Other
prescribed courts have jurisdiction if the Act so provides.
Part 3 deals with the capacity of a prescribed court to issue
compulsory licences and to revoke the registration of a design in
certain circumstances.
Part 4 also deals with the capacity of a prescribed court to revoke
the registration of a design in certain other circumstances.
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Jurisdiction Part 2
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Part 2—Jurisdiction
83 Jurisdiction of Federal Court
(1) The Federal Court has jurisdiction with respect to matters arising
under this Act.
(2) The jurisdiction of the Federal Court to hear and determine appeals
from decisions of the Registrar is exclusive of the jurisdiction of
any other court other than the jurisdiction of:
(a) the Federal Circuit Court under subsection 83A(2); and
(b) the High Court under section 75 of the Constitution.
(3) A prosecution for an offence against this Act must not be brought
in the Federal Court.
83A Jurisdiction of the Federal Circuit Court
(1) The Federal Circuit Court has jurisdiction with respect to matters
arising under this Act.
(2) The jurisdiction of the Federal Circuit Court to hear and determine
appeals from decisions of the Registrar is exclusive of the
jurisdiction of any other court other than the jurisdiction of:
(a) the Federal Court under subsection 83(2); and
(b) the High Court under section 75 of the Constitution.
(3) A prosecution for an offence against this Act must not be brought
in the Federal Circuit Court.
84 Jurisdiction of other prescribed courts
(1) Each prescribed court other than the Federal Court or the Federal
Circuit Court has jurisdiction in respect of matters arising under
this Act in relation to which proceedings may be brought in a
prescribed court.
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(2) The jurisdiction conferred by subsection (1) on the Supreme Court
of a Territory is as follows:
(a) the jurisdiction is conferred to the extent that the Constitution
permits so far as it relates to:
(i) infringement proceedings; or
(ii) an application for revocation of registration of a design
because of section 74; and
(b) in any other case, the jurisdiction is conferred only in relation
to proceedings instituted by:
(i) a natural person who is resident in the Territory at the
time the proceedings are brought; or
(ii) a corporation that has its principal place of business in
the Territory at the time the proceedings are brought.
85 Exercise of jurisdiction
The jurisdiction of a prescribed court under section 83, 83A or 84
is to be exercised by a single judge.
86 Transfer of proceedings etc.
(1) A court in which proceedings have been brought under this Act
may transfer the proceedings to another prescribed court having
jurisdiction to hear and determine the proceedings:
(a) if the court thinks fit; and
(b) upon application of a party made at any stage in the
proceedings.
(2) If proceedings are transferred from one court to another court
under this section:
(a) all documents of record relevant to the proceedings are to be
sent to the Registrar or other appropriate officer of the other
court; and
(b) the other court must proceed as if:
(i) the proceedings had been started in that court; and
(ii) the same steps in the proceedings had been taken in that
court as had been taken in the transferring court.
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(3) This section does not apply in relation to a transfer of proceedings
between the Federal Court and the Federal Circuit Court.
Note: For transfers of proceedings from the Federal Circuit Court to the
Federal Court, see section 39 of the Federal Circuit Court of Australia
Act 1999. For transfers of proceedings from the Federal Court to the
Federal Circuit Court, see section 32AB of the Federal Court of
Australia Act 1976.
87 Appeals
(1) An appeal lies to the Federal Court from a judgment or order of:
(a) another prescribed court exercising jurisdiction under this
Act; or
(b) any other court in a proceeding referred to in section 73 or
77.
(2) An appeal does not lie to the full court of the Federal Court from a
judgment or order of a single judge of the Federal Court or the
Federal Circuit Court, in the exercise of its jurisdiction to hear and
determine appeals from decisions of the Registrar, other than with
the leave of the Federal Court.
(3) An appeal lies to the High Court, with special leave of the High
Court, from a judgment or order referred to in subsection (1).
(4) No appeal lies from a judgment or order referred to in
subsection (1), except as provided by this section.
88 Powers of Federal Court and Federal Circuit Court on hearing
an appeal
On hearing an appeal against a decision or direction of the
Registrar, the Federal Court or Federal Circuit Court may do any
one or more of the following:
(a) admit further evidence orally, or on affidavit or otherwise;
(b) permit the examination and cross-examination of witnesses
(including witnesses who gave evidence before the
Registrar);
(c) order an issue of fact to be tried as it directs;
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(d) affirm, reverse or vary the Registrar’s decision or direction;
(e) give any judgment, or make any order, that, in all the
circumstances, it thinks fit;
(f) order a party to pay costs to another party.
89 Registrar may appear in appeals
The Registrar may appear and be heard at the hearing of an appeal
to the Federal Court or Federal Circuit Court against a decision or
direction of the Registrar, even if the Registrar is not a party to the
appeal.
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Compulsory licences and revocation of registration Part 3
Section 90
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Part 3—Compulsory licences and revocation of
registration
90 Person may apply to court for compulsory licence
(1) A person may apply to a prescribed court, after the end of the
prescribed period, for an order requiring the registered owner of a
registered design to grant the person a licence to do any of the
things mentioned in paragraphs 10(1)(a) to (e) in relation to the
design.
(2) An application under subsection (1) may not be made unless a
certificate of examination has been issued.
(3) After hearing the application, the court may make such an order if
it is satisfied that:
(a) products embodying the design have not been made in
Australia, to the extent that is reasonable in the circumstances
of the case; and
(b) the registered owner of the design has given no satisfactory
reason for failing to exercise the exclusive rights in the
design; and
(c) the applicant has tried for a reasonable period, but without
success, to obtain from the registered owner of the design an
authorisation to do, on reasonable terms and conditions, any
of the things mentioned in paragraphs 10(1)(a) to (e) in
relation to the design.
91 Terms of compulsory licence
(1) This section applies if a court makes an order granting a licence
under section 90.
(2) The order must direct that the licence:
(a) does not give the licensee any exclusive rights in the design;
and
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(b) is to be assignable only in connection with an enterprise or
goodwill in connection with which the licence is used;
and may direct that the licence is to be granted on any other terms
specified in the order.
(3) The order operates, without prejudice to any other method of
enforcement, as if it were embodied in a deed granting a licence
and executed by the registered owner of the design and all other
necessary parties.
(4) The applicant is to pay the registered owner of the design:
(a) such amount as is agreed between the applicant and the
registered owner of the design; or
(b) if paragraph (a) does not apply—such amount as is
determined by a prescribed court to be just and reasonable
having regard to the economic value of the licence.
(5) The registered owner of the design or a prescribed court may
revoke the licence if:
(a) the registered owner of the design and the licensee are
agreed, or the court on application made by either party finds,
that the circumstances that justified the grant of the licence
have ceased to exist and are unlikely to recur; and
(b) the legitimate interests of the licensee are not likely to be
adversely affected by the revocation.
92 Revocation of registration after grant of compulsory licence
(1) If a licence is granted under section 90, an interested person may
apply to a prescribed court, after the end of the prescribed period,
for an order revoking the registration of the design.
(2) After hearing the application, the court may make the order if it is
satisfied that:
(a) the reasonable requirements of the public with respect to the
design have not been satisfied; and
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(b) the registered owner of the design has given no satisfactory
reason for failing to exercise the exclusive rights in the
design.
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Chapter 7 Jurisdiction and powers of courts
Part 4 Revocation of registration by court in other circumstances
Section 93
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Part 4—Revocation of registration by court in
other circumstances
93 Revocation of registration in other circumstances
(1) A person may apply to a prescribed court for an order revoking the
registration of a design.
(2) An application under subsection (1) may be made only after the
design has been examined under Chapter 5 and a certificate of
examination has been issued.
(3) The grounds on which a court may revoke the registration of the
design are:
(a) that the design is not a registrable design; or
(b) that one or more of the original registered owners was not an
entitled person in relation to the design when the design was
first registered; or
(c) that each of the original registered owners was an entitled
person in relation to the design when the design was first
registered, but another person or persons were entitled
persons in relation to the design at that time; or
(d) that the registration of the design was obtained by fraud, false
suggestion or misrepresentation; or
(e) that the design is a corresponding design to an artistic work,
and copyright in the artistic work has ceased.
(4) In this section:
original registered owner, in relation to a design, means each
person entered in the Register as the registered owner at the time
the design was first registered.
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The Crown Chapter 8
Simplified outline of Chapter 8 Part 1
Section 94
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Chapter 8—The Crown
Part 1—Simplified outline of Chapter 8
94 Simplified outline
The following is a simplified outline of this Chapter:
Part 2 permits the use of registered designs by the Commonwealth
or a State.
Part 3 permits acquisition of registered designs by the
Commonwealth.
Part 4 enables the Registrar to prohibit or restrict the publication of
information about a design application, if to do so is necessary or
expedient in the interests of the defence of the Commonwealth.
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Chapter 8 The Crown
Part 2 Use by the Crown
Section 95
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Part 2—Use by the Crown
95 Meaning of terms
(1) In this Part, a reference to the use of a design, or of a product in
relation to which a design is registered, which embodies the design,
is a reference to the exercise of the exclusive rights in the design
mentioned in paragraphs 10(1)(a) to (e).
(2) In this Part:
State includes the following:
(a) the Australian Capital Territory, the Northern Territory and
Norfolk Island;
(b) an authority of the Australian Capital Territory, the Northern
Territory or Norfolk Island.
96 Use of design by the Commonwealth or a State
(1) At any time after a design application disclosing a design has been
filed or a design has been registered, the Commonwealth or a State,
or a person authorised in writing by the Commonwealth or a State,
may use the design for the services of the Commonwealth or State.
(2) An authority under subsection (1):
(a) may be given either before or after the registration of the
design; and
(b) may relate to, and authorise retrospectively, acts done after
the filing of the application and before the giving of the
authority; and
(c) may be given to a person even if that person is directly or
indirectly authorised by the entitled person in relation to the
design, or the registered owner of the design, as the case
requires, to use the design.
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Use by the Crown Part 2
Section 97
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(3) Subject to section 105, a design is taken for the purposes of this
Part to be used for the services of the Commonwealth or a State if
the use of the design is necessary for the proper provision of those
services within Australia.
97 Applicants, entitled persons and registered owners to be
informed of use
(1) As soon as practicable after the use of a design under section 96,
the Commonwealth or a State must inform the following persons of
that use:
(a) in the case of a design that has not yet been registered—each
applicant for registration of the design and each entitled
person in relation to the design;
(b) in the case of a registered design—the registered owner.
(2) The Commonwealth or a State must also give to each person
mentioned in paragraph (1)(a) or (b) such information about the
use of the design as the person from time to time reasonably
requires, unless it appears to the Commonwealth or State that it
would be contrary to the public interest to do so.
98 Terms of use
(1) The terms of use of a design:
(a) are as agreed on, whether before, during or after that use,
between the Commonwealth or State and the entitled person
in relation to the design or the registered owner of the design,
as the case requires; or
(b) in absence of agreement, are as determined by a prescribed
court.
(2) A prescribed court may, in determining the terms of use, take into
consideration compensation that a person interested in the design
has received, directly or indirectly, from the Commonwealth or
State in respect of the design.
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Part 2 Use by the Crown
Section 99
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(3) A person may not apply to a prescribed court for a determination
under subsection (1) in relation to a design unless a certificate of
examination has been issued in relation to the design.
99 Previous agreements inoperative
(1) This section applies to an agreement or licence (whether made or
given before or after the commencement of this section) fixing the
terms on which a person other than the Commonwealth or a State
may use a design.
(2) Such an agreement or licence is inoperative with respect to the use,
after the commencement of this section, of the design under
section 96, unless the agreement or licence has been approved by
the Minister or by the Attorney-General of the State.
100 Infringement
Infringement proceedings do not lie in relation to the use of a
design under section 96.
101 Declaration by court
(1) The registered owner of a design who considers that the design has
been used under section 96 may apply to a prescribed court for a
declaration to that effect.
(2) An application under subsection (1) may not be made by the
registered owner unless a certificate of examination has been
issued.
(3) In a proceeding under subsection (1), the Commonwealth or the
State concerned is the defendant and may, by way of
counter-claim, apply for the revocation of the registration of the
design under section 93.
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Use by the Crown Part 2
Section 102
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102 Use of design to cease under court order
(1) A prescribed court may, on the application of the registered owner,
declare that the use of a registered design by the Commonwealth or
State is not, or is no longer, necessary for the proper provision of
services of the Commonwealth or State.
(2) The court may make a declaration under subsection (1) if it is
satisfied that in all the circumstances of the case, it is fair and
reasonable to do so.
(3) The court may further order that the Commonwealth or the State is
to cease to use the design:
(a) on and from the day specified in the order; and
(b) subject to any conditions specified in the order.
(4) In making an order under subsection (3), the court is to ensure that
the legitimate interests of the Commonwealth or State are not
adversely affected by the order.
(5) A person may not apply to a prescribed court for a declaration
under subsection (1) in relation to a design unless a certificate of
examination has been issued in relation to the design.
103 Sale of products
If a product that embodies a design is sold during the use of the
design under section 96, the buyer, and any person claiming
through the buyer, is entitled to deal with the product as if the
Commonwealth or the State were the registered owner of the
design.
104 Forfeited products
Nothing in this Part affects the right of the Commonwealth or of a
State, or of a person deriving title directly or indirectly from the
Commonwealth or a State, to sell or use a product forfeited under a
law of the Commonwealth or the State.
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Part 2 Use by the Crown
Section 105
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105 Supply of products by the Commonwealth to foreign countries
(1) This section applies if:
(a) the Commonwealth has made an agreement with a foreign
country to supply to the country a product in relation to
which a design is registered, which embodies the design; and
(b) the product is required for the defence of the country.
(2) The use of the product by the Commonwealth, or by a person
authorised in writing by the Commonwealth, for the purposes of
supplying the product is taken, for the purposes of this Part, to be a
use of the product by the Commonwealth for the services of the
Commonwealth.
(3) The Commonwealth or the authorised person may:
(a) sell the product to the country under the agreement; and
(b) sell to any person any of the products that are not required for
the purpose for which they were made.
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Acquisition by and assignments to the Crown Part 3
Section 106
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Part 3—Acquisition by and assignments to the
Crown
106 Acquisition of design by the Commonwealth
(1) The Governor-General may direct that a design disclosed in a
design application, or a registered design, be acquired by the
Commonwealth.
(2) When a direction is given, all rights in respect of the design are, by
force of this section, transferred to and vested in the
Commonwealth.
(3) Notice of the acquisition must be published in the prescribed
manner and given to the following:
(a) in the case of a design that has not yet been registered—each
applicant for registration of the design and each entitled
person in relation to the design;
(b) in the case of a registered design—the registered owner.
(4) The Commonwealth must pay:
(a) each entitled person in relation to the design or the registered
owner of the design, as the case requires; and
(b) all other persons appearing in the Register as having an
interest in the design;
such compensation as is agreed between the Commonwealth and
those persons or, in the absence of agreement, as is determined by
a prescribed court.
(5) A person may not apply to a prescribed court for a determination
under subsection (4) in relation to a design unless a certificate of
examination has been issued in relation to the design.
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Part 3 Acquisition by and assignments to the Crown
Section 107
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107 Assignment of design to the Commonwealth
(1) An entitled person in relation to a design or the registered owner of
a design may assign to the Commonwealth the person’s interest in
the design and in the exclusive rights obtained, or to be obtained, in
the design.
(2) The assignment and all covenants and agreements contained in the
assignment are:
(a) valid and effectual even if valuable consideration has not
been given; and
(b) may be enforced by action or other appropriate proceeding in
the name of the Minister.
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The Crown Chapter 8
Prohibition orders Part 4
Section 108
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Part 4—Prohibition orders
108 Prohibition of publication of information about designs
(1) The Registrar may, if it appears to the Registrar to be necessary or
expedient to do so in the interests of the defence of the
Commonwealth, by written order, prohibit or restrict the
publication of information about the subject matter of a design
application.
(2) The Registrar is subject to any directions by the Minister in making
an order under subsection (1).
(3) If an order is in force under subsection (1) in relation to an
application, the application may be dealt with under this Act, but a
design disclosed in the application must not be registered or
published.
(4) If:
(a) an order under subsection (1) has been revoked; and
(b) at the date of the revocation of the order, the design would,
but for the operation of subsection (3), have been registered
or published;
the design must be registered or published within the prescribed
period.
(5) Nothing in this Act prevents disclosing information about a design
to an Agency or Commonwealth authority for the purpose of
obtaining advice as to whether an order under this section should
be made, amended or revoked.
109 Publication of information about designs
(1) A person commits an offence if:
(a) the person is subject to an order under subsection 108(1); and
(b) the person engages in conduct; and
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Chapter 8 The Crown
Part 4 Prohibition orders
Section 109
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(c) the person’s conduct contravenes the order.
Maximum penalty: Imprisonment for 2 years.
(2) Subsection (1) does not apply if the person has the Registrar’s
written consent.
Note: A defendant bears an evidentiary burden in relation to the matter in
subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) In this section, engage in conduct means:
(a) to do an act; or
(b) omit to do an act.
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The Register Chapter 9
Section 110
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Chapter 9—The Register
110 Simplified outline
The following is a simplified outline of this Chapter:
Chapter 9 deals with the Register of Designs.
The Chapter requires the Registrar to keep a Register and enter
particular matters in it.
The Register is to be available for public inspection.
The Register can be amended in specified circumstances.
111 Registrar must keep Register
(1) The Registrar must keep at the Designs Office a Register of
Designs.
(2) The following particulars must be entered in the Register in respect
of a registered design:
(a) the product or products in relation to which the design is
registered;
(b) the name of each person who is entitled to be entered on the
Register as the registered owner of the design;
(c) representations of the design;
(d) whether or not a certificate of examination has been issued in
respect of the design;
(e) any other particulars prescribed by the regulations.
(3) All documents filed in connection with the registration of
particulars mentioned in subsection (2) must be available for
inspection at the Designs Office by any person during the hours
when it is open for business.
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Section 112
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112 Register may be kept by computer
(1) The Register may be kept wholly or partly by use of a computer.
(2) If the Register is kept wholly or partly by use of a computer:
(a) references in this Act to an entry in the Register include
references to a record of particulars kept by use of the
computer and comprising the Register or part of the Register;
and
(b) references in this Act to particulars being registered, or
entered in the Register, include references to the keeping of
the record of those particulars as part of the Register by use
of the computer; and
(c) references in this Act to the amendment, alteration or
rectification of the Register include references to the
amendment, alteration or rectification of the record of
particulars kept by use of the computer and comprising the
Register or part of the Register.
113 Inspection of Register
(1) The Register is to be available for inspection at the Designs Office
by any person at the times prescribed by the regulations.
(2) If the Register is kept by use of a computer, subsection (1) is taken
to be complied with by giving members of the public access to a
computer terminal that they can use to inspect particulars that are
kept by the use of a computer.
114 Amendments of Register to record changes of ownership
(1) The registered owner of a registered design who assigns an interest
in the design, or an assignee of an interest in a design, may ask the
Registrar to record the assignment of the interest in the design.
(2) A person who becomes the owner of a registered design by
devolution by will or by operation of law may ask the Registrar to
record the person’s interest in the design.
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Section 115
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(3) If a request is made under subsection (1), the Registrar must:
(a) notify each other registered owner of the design of the
request; and
(b) record the assignment;
unless any of the other registered owners advises the Registrar, in
writing and within the period prescribed by the regulations, that the
other registered owner does not consent to the assignment.
(4) A request under subsection (1) or (2) must be made in accordance
with the regulations.
115 Amendments of Register made to give effect to certain decisions
If:
(a) the Registrar decides to revoke the registration of a design
under section 50, 52 or 68; or
(b) a court makes an order revoking the registration of a design;
the Registrar must make an entry in the Register stating that the
registration of the design has been revoked and that the design is
taken never to have been registered.
116 Reissue of certificates
After amending the Register, the Registrar must:
(a) issue to the registered owner of the design a new certificate
of registration; and
(b) publish a notice in the manner prescribed by the regulations,
specifying the amendments to the Register; and
(c) if appropriate, publish the design.
117 Trusts not to be entered in Register
Notice of a trust, whether express, implied or constructive, must
not be received by the Registrar or entered in the Register.
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Section 118
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118 Evidentiary provision
(1) The Register is prima facie evidence of any particulars entered in
it.
(2) If the Register is wholly or partly kept by use of a computer, a
document issued by the Registrar producing in writing all or any of
the particulars comprising the Register, or that part of it, as the case
may be, is admissible in any proceedings as prima facie evidence
of those particulars.
(3) A signed copy of, or signed extract from, the Register is admissible
in any proceedings as if it were the original.
(3A) This section does not apply in relation to any particulars recorded
in the Register in relation to a PPSA security interest.
Note: Certain particulars relating to registrations in respect of PPSA security
interests under the Personal Property Securities Act 2009 are
admissible in evidence: see section 174 of that Act.
(4) In this section:
signed means signed by or on behalf of the Registrar.
119 Admissibility of unregistered interests
(1) A document or instrument in respect of which an entry has not
been made in the Register is not admissible in evidence in a court
as proof of title to a design, or an interest in a design, except as
follows:
(a) in the case of an application under section 120;
(b) if the court concerned directs that the document or instrument
is admissible.
(2) However, subsection (1) does not restrict the admissibility in
evidence in a court of a document or instrument in relation to a
PPSA security interest.
Note: Certain particulars relating to registrations in respect of PPSA security
interests under the Personal Property Securities Act 2009 are
admissible in evidence: see section 174 of that Act.
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Section 120
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120 Rectification of Register
(1) A person aggrieved by:
(a) the omission of an entry from the Register; or
(b) an entry wrongly made in the Register; or
(c) an error or defect in an entry in the Register; or
(d) an entry wrongly existing in the Register;
may apply to a prescribed court for an order to rectify the Register.
(2) On hearing an application under subsection (1), the court may:
(a) decide any question that it is necessary or expedient to decide
in connection with the rectification of the Register; and
(b) make an order it thinks fit for the rectification of the Register.
(3) The Registrar must be given notice of an application made under
subsection (1), and is entitled to appear and be heard in
proceedings in relation to the application.
(4) If the court makes an order under this section:
(a) the court must give a copy of the order to the Registrar; and
(b) the Registrar must give effect to the order.
(5) A person may not apply to a prescribed court under subsection (1)
for rectification of the Register in relation to a design unless a
certificate of examination has been issued in relation to the design.
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Chapter 10 Administration
Section 121
88 Designs Act 2003
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Chapter 10—Administration
121 Simplified outline
The following is a simplified outline of this Chapter:
Chapter 10 contains administrative provisions.
The offices of Registrar and Deputy Registrar of Designs are
established by this Chapter.
The Designs Office is also established.
122 Registrar
(1) There is to be a Registrar of Designs.
(2) The Registrar has such powers and functions as are conferred by
this Act or any other Act.
123 Deputy Registrars
(1) There is to be at least one Deputy Registrar of Designs.
(2) Subject to any direction by the Registrar, a Deputy Registrar has all
the powers and functions of the Registrar under this Act or any
other Act, except the Registrar’s powers of delegation under
section 124.
(3) A power or function of the Registrar under this Act or any other
Act, when exercised or performed by a Deputy Registrar, is to be
taken for the purposes of this Act or any other Act to have been
exercised or performed by the Registrar.
(4) The exercise of a power, or function, of the Registrar under this
Act or any other Act by a Deputy Registrar does not prevent the
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Section 124
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exercise of the power, or the performance of the function, by the
Registrar.
(5) If the exercise of a power or function by the Registrar, or the
operation of a provision of this Act or any other Act, depends on
the opinion, belief or state of mind of the Registrar in relation to a
matter:
(a) that power or function may be exercised by a Deputy
Registrar upon the opinion, belief or state of mind of the
Deputy Registrar in relation to that matter; and
(b) that provision may operate upon the opinion, belief or state
of mind of a Deputy Registrar in relation to that matter.
124 Delegation by Registrar
(1) The Registrar may, by written instrument signed by the Registrar,
delegate all or any of the Registrar’s powers or functions under this
Act, the regulations or any other Act to a prescribed employee, or a
prescribed class of employees.
(2) A delegate must, if so required by the instrument of delegation,
exercise or perform a delegated power or function under the
direction or supervision of the Registrar or an employee specified
in the instrument.
125 Designs Office
(1) There is to be a Designs Office.
(2) The Registrar may establish one or more sub-offices of the Designs
Office as the Registrar considers appropriate.
(3) The Registrar may abolish any such sub-offices.
126 Seal of Designs Office
(1) There is to be a seal of the Designs Office and impressions of the
seal must be judicially noticed.
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(2) The seal of the Designs Office may be kept and used in electronic
form.
127 Registrar’s Powers
(1) The Registrar may, for the purposes of this Act:
(a) summon witnesses; and
(b) receive written or oral evidence on oath or affirmation; and
(c) require the production of documents or articles; and
(d) award costs against a party to proceedings before him or her.
(2) The Registrar may protect the confidential status of documents or
articles produced in confidence under paragraph (1)(c).
128 Recovery of costs
Costs awarded by the Registrar against a party are recoverable as a
debt.
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Miscellaneous Chapter 11
Simplified outline of Chapter 11 Part 1
Section 129
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Chapter 11—Miscellaneous
Part 1—Simplified outline of Chapter 11
129 Simplified outline
The following is a simplified outline of this Chapter:
Chapter 11 contains miscellaneous matters.
Part 2 deals with fees.
Part 3 contains offence provisions.
Part 4 sets out decisions that are reviewable by the Administrative
Appeals Tribunal.
Part 4A lets an act be done after the period otherwise provided for
doing the act if that period ends on a day when the Designs Office
or a sub-office is not open for business.
Part 5 gives the Registrar the power to extend the time within
which specified things must be done.
Part 6 sets out regulation-making powers and other provisions
dealing with miscellaneous matters.
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Chapter 11 Miscellaneous
Part 2 Fees
Section 130
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Part 2—Fees
130 Fees
(1) The regulations may prescribe the fees to be paid for the purposes
of this Act or the regulations.
(2) Without limiting subsection (1), the regulations may prescribe
different fees, in respect of the doing of an act or the filing of a
document, according to when the act is done or the document is
filed.
(3) The prescribed fees are payable in accordance with the regulations.
(4) The regulations may provide for the consequences of failing to pay
a fee in accordance with the regulations.
(5) In particular, the regulations may provide that, for the purposes of
this Act or the regulations:
(a) an act is not to be done, or is taken not to have been done, if
the fee for doing the act is not paid in accordance with the
regulations; or
(b) a document is not filed, or is taken not to have been filed, if
the fee for filing the document is not paid in accordance with
the regulations; or
(c) an application for registration of a design lapses, or is taken
to have lapsed, if a fee relating to the application is not paid
in accordance with the regulations.
(6) Subsection (5) does not limit subsection (4).
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Miscellaneous Chapter 11
Offences Part 3
Section 131
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Part 3—Offences
131 False entries in Register
(1) A person commits an offence if:
(a) the person makes an entry, or causes an entry to be made, in
the Register; and
(b) the person knows, or is reckless as to whether, the entry is
false.
Maximum penalty: Imprisonment for 12 months.
(2) A person commits an offence if:
(a) the person tenders a document in evidence; and
(b) the person knows that, or is reckless as to whether, the
document falsely purports to be a copy of or extract from an
entry in the Register.
Maximum penalty: Imprisonment for 12 months.
132 False representation that a design is registered
(1) A person commits an offence if:
(a) the person represents that a design is registered; and
(b) the person knows, or is reckless as to whether, the
representation is false.
Maximum penalty: 60 penalty units.
(2) A person commits an offence if the person:
(a) represents that the person, or another person, is the registered
owner of a registered design; and
(b) knows that the design is not registered, or is reckless as to
whether the representation is false.
Maximum penalty: 60 penalty units.
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Part 3 Offences
Section 133
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(3) A person commits an offence if:
(a) the person sells a product which embodies a design; and
(b) the product has stamped, engraved, impressed upon or
otherwise applied to it the words “registered in Australia”,
“design registered in Australia”, or other words, expressing
or implying that the design is registered; and
(c) the person knows the design is not registered, or is reckless
as to whether the design is registered.
Maximum penalty: 60 penalty units.
(4) Strict liability applies to paragraph (3)(b).
133 False representations about the Designs Office
(1) A person commits an offence if:
(a) the person:
(i) places, or allows to be placed, words on the building in
which the person’s office or business is situated; or
(ii) uses words when advertising the person’s office or
business; or
(iii) places words on a document, as a description of the
person’s office or business; or
(iv) otherwise uses words in connection with the person’s
office or business; and
(b) the words are “Office for registering designs”, or other
words, that would lead a reasonable person to believe that the
office or business is, or is officially connected with, the
Designs Office; and
(c) the person knows or is reckless as to whether the person’s
office or business is, or is connected with, the Designs
Office.
Maximum penalty: 30 penalty units.
(2) Strict liability applies to paragraph (1)(b).
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Miscellaneous Chapter 11
Offences Part 3
Section 134
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134 Failure to comply with requirements of Registrar
(1) A person commits an offence if:
(a) the person is subject to a requirement to:
(i) appear as a witness before the Registrar, having been
offered reasonable expenses to appear; or
(ii) answer a question put by the Registrar; or
(iii) produce a document or article to the Registrar; or
(iv) be sworn or make an affirmation in proceedings before
the Registrar; and
(b) the person engages in conduct; and
(c) the person knows or is reckless as to whether the person’s
conduct contravenes the requirement.
Maximum penalty: 30 penalty units.
(2) Subsection (1) does not apply if the person has a lawful excuse.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (2) (see subsection 13.3(3) of the Criminal Code).
(3) A person is excused from the requirements of paragraph (1)(a) if
those requirements might tend to incriminate the person or expose
the person to a penalty.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (3) (see subsection 13.3(3) of the Criminal Code).
(4) In this section:
engage in conduct means:
(a) do an act; or
(b) omit to do an act.
135 Officers not to traffic etc. in designs
(1) The Registrar, a Deputy Registrar or an employee commits an
offence if he or she sells, acquires or traffics in:
(a) a registered design, whether granted in Australia or anywhere
else; or
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Part 3 Offences
Section 135
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(b) a right to, or licence under, a registered design, whether
granted in Australia or anywhere else.
Maximum penalty: 60 penalty units.
(2) A purchase, sale, acquisition, assignment or transfer made or
entered into in contravention of this section is void.
(3) This section does not apply to the registered owner of the design or
to an acquisition by devolution by will or by operation of law.
Note: A defendant bears an evidential burden in relation to the matter in
subsection (3) (see subsection 13.3(3) of the Criminal Code).
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Miscellaneous Chapter 11
Review of the Registrar’s decisions Part 4
Section 136
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Part 4—Review of the Registrar’s decisions
136 Review by Administrative Appeals Tribunal
(1) A person may apply to the Administrative Appeals Tribunal for
review of a decision of the Registrar:
(a) to refuse an application that does not meet the minimum
filing requirements under subsection 24(2); or
(b) to make or refuse to make a determination under section 29;
or
(c) to refuse an application under section 30 for a design
application to proceed in the person’s name; or
(d) to refuse to register a design under section 43; or
(e) to refuse to publish a design under section 59; or
(f) to prohibit or restrict the publication of information about the
subject matter of a design application under section 108; or
(g) to refuse an application under section 137 for an extension of
time.
(2) If a decision mentioned in subsection (1) is made and a written
notice of the decision is given to a person whose interests are
affected by the decision, the notice must include a statement to the
effect that an application may be made to the Administrative
Appeals Tribunal under the Administrative Appeals Tribunal Act
1975 for review of the decision.
(3) Failure to comply with subsection (2) in relation to a decision does
not affect the validity of the decision.
(4) In this section:
decision has the same meaning as in the Administrative Appeals
Tribunal Act 1975.
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Chapter 11 Miscellaneous
Part 4A Doing act after end of period otherwise provided for doing it
Section 136A
98 Designs Act 2003
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Part 4A—Doing act after end of period otherwise
provided for doing it
136A Doing act when Designs Office reopens after end of period
otherwise provided for doing act
(1) If the last day of a period provided by this Act (except this section)
or the regulations for doing an act is a day when the Designs
Office, or a sub-office of the Designs Office (if any), is not open
for business, the act may be done in prescribed circumstances on
the next day when the office or sub-office is open for business.
(2) For the purposes of this section, the Designs Office, or a sub-office
of the Designs Office (if any), is taken not to be open for business
on a day:
(a) declared by regulations to be a day on which the office or
sub-office is not open for business; or
(b) declared, by a prescribed person in writing published in the
prescribed way, to be a day on which the office or sub-office
is not open for business.
Declarations
(3) A declaration mentioned in paragraph (2)(a) or (b) may identify the
day by reference to its being declared a public holiday by or under
a law of a State or Territory. This does not limit the way the
declaration may identify the day.
(4) A declaration mentioned in paragraph (2)(b):
(a) may be made before, on or after the day; and
(b) is not a legislative instrument.
Relationship with other law
(5) This section has effect despite the rest of this Act.
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Doing act after end of period otherwise provided for doing it Part 4A
Section 136A
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(6) Subsection 36(2) of the Acts Interpretation Act 1901 does not
apply in relation to the act mentioned in subsection (1) of this
section.
Exception for prescribed act
(7) This section does not apply to a prescribed act.
Note: Subsection 36(2) of the Acts Interpretation Act 1901 is relevant to a
prescribed act.
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Chapter 11 Miscellaneous
Part 5 Extensions of time
Section 137
100 Designs Act 2003
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Part 5—Extensions of time
137 Extensions of time
(1) The Registrar must extend the time for doing a relevant act that is
required to be done within a certain time if the act is not, or cannot
be, done within that time because of an error or omission by:
(a) the Registrar or a Deputy Registrar; or
(b) a person employed in the Designs Office; or
(c) a person providing, or proposing to provide, services for the
benefit of the Designs Office.
(2) The Registrar may, on application by a person concerned in
accordance with the regulations, extend the time for doing a
relevant act if, because of:
(a) an error or omission by the person, or by the person’s agent;
or
(b) circumstances beyond the control of the person;
the relevant act that is required to be done within a certain time is
not, or cannot be, done within that time.
(3) The time for doing a relevant act may be extended, whether before
or after that time has expired.
(4) The Registrar must advertise an application for an extension of
time of more than 3 months in the manner prescribed by the
regulations.
(5) Subject to subsection (6), a person may, as prescribed, oppose the
granting of the application.
(6) If the Registrar is satisfied that an application under subsection (2)
would not be granted, even in the absence of opposition under
subsection (5):
(a) the Registrar need not advertise the application in accordance
with subsection (4); and
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Extensions of time Part 5
Section 138
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(b) the application cannot be opposed; and
(c) the Registrar must refuse the application.
(7) In this section:
relevant act means an action (other than a prescribed action) in
relation to:
(a) a registered design; or
(b) an application for registration or publication of a design; or
(c) any proceedings under this Act (other than court
proceedings).
138 Consequences of extension
(1) If:
(a) a design application lapses, or the registration of a design
ceases to be in force because of a failure to do a relevant act
(within the meaning of section 137); and
(b) the time for doing the act is extended;
the application or registration must be treated as having been
restored on the day on which the extension is granted.
(2) If an application or registration is restored under subsection (1), the
Registrar must:
(a) advise the applicant or registered owner that the application
or registration has been restored; and
(b) publish a notice in the manner prescribed by the regulations
that the application or registration has been restored.
139 Protection of third parties
(1) This section applies if the registration of a design ceases to be in
force because of a failure to do a relevant act (within the meaning
of section 137) and is subsequently restored under section 138.
(2) A person who took definite steps to use the design commercially
after the registration of the design ceased to be in force but before
the registration is restored may:
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Part 5 Extensions of time
Section 140
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(a) continue to use the design after the registration is restored; or
(b) sell the right to use the design to another person.
(3) However, the person must not grant a licence to another person to
use the design.
(4) A person who purchases a right under paragraph (2)(b) must not
sell to another person the right to use the design or grant a licence
to another person to use the design.
(5) A person who continues to use a design because of
paragraph (2)(a) or used the design after purchasing it as
mentioned in subsection (4) does not infringe the registered design.
140 Infringement proceedings
Infringement proceedings cannot be brought in respect of an
infringement committed:
(a) between the day on which the registration of the design
ceases to be in force and the day on which it is restored; or
(b) between the day on which the design application lapses and
the day on which it is restored.
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Miscellaneous Chapter 11
Other Part 6
Section 141
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Part 6—Other
141 Powers of agents
An agent may do any act in connection with the registration of
designs, on behalf of any other person.
142 Right of lien of registered patent attorney and registered trade
marks attorney
The regulations may provide that a registered patent attorney or a
registered trade marks attorney has, in relation to documents and
property of a client in a matter relating to designs, the same right of
lien that a solicitor has in relation to the documents and property of
a client.
143 Revocation of registration does not affect court decisions and
things done under contracts before revocation
The revocation of the registration of a design does not affect the
operation of a court decision made before the revocation, or things
done under a contract before the revocation.
144 Filing of documents
A document may be filed with the Designs Office by:
(a) delivering the document to the Designs Office, or a
sub-office of the Designs Office (if any), either personally or
by post; or
(b) any other prescribed means.
145 Service of documents
Where this Act provides for a document to be served on, or given
or sent to, a person and the person has given the Registrar an
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address in Australia for service of documents, the document may
be served on, or given or sent to, the person by post to that address.
146 Death of applicant before application determined
If an applicant for registration or publication of a design dies
before the application is determined, the person’s legal
representative may proceed with the application.
147 Death of person after design registered
(1) This section applies if, at any time after a design is registered, the
Registrar is satisfied that the registered owner had died (or, in the
case of a body corporate, had ceased to exist) before the design
was registered.
(2) The Registrar may amend the Register by substituting for the name
of the registered owner the name of the person who should have
been entered in the Register as the registered owner.
(3) An amendment by the Registrar under this section has effect, and is
to be taken always to have had effect, accordingly.
148 Exercise of discretionary power by Registrar
The Registrar must not exercise a discretionary power under this
Act adversely to a person without giving that person an opportunity
to be heard.
149 Regulations
(1) The Governor-General may make regulations prescribing matters:
(a) required or permitted to be prescribed; and
(b) necessary or convenient to be prescribed for carrying out or
giving effect to this Act; and
(c) necessary or convenient for the conduct of any business
relating to the Designs Office.
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(2) Without limiting subsection (1), that subsection includes the power
to make regulations:
(a) requiring persons to give statutory declarations in relation to
applications under the Act or regulations, or in relation to
proceedings under the Act (other than court proceedings);
and
(b) making provision for and in relation to the making of a
declaration, or the doing of an act, under this Act on behalf of
a person who, because of infancy or physical or mental
disability, is unable to make the declaration or do the act; and
(c) providing for the refund, in the whole or part of a fee paid
under the Act; and
(d) providing for the waiver, in whole or part, of a fee that would
otherwise be payable under the Act; and
(e) making provision for and in relation to the amendment of an
entry in the Register to correct a clerical error or an obvious
mistake, or for any other purpose; and
(f) empowering the Registrar to require a person to inform the
Registrar, within the period prescribed by the regulations,
whether or not the person wishes to be heard for the purposes
of a provision of the Act; and
(g) empowering the Registrar to require a person who wishes to
be heard for the purposes of a provision of the Act to appear
on a day, and at a place and time, specified by the Registrar;
and
(h) providing for the contents of design applications in which
one or more designs are disclosed, including, but not limited
to, requirements as to common ownership of the designs; and
(i) empowering the Registrar to direct an applicant for
registration or publication of a design to do such things as are
necessary to ensure that the application is in accordance with
the requirements of the regulations for filing and:
(i) providing for the lapsing of the application if such a
direction is not complied with within the period
specified in the regulations; and
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(ii) providing for the restoration of an application that has
so lapsed; and
(j) providing for appeals against decisions of the Registrar made
under the regulations; and
(k) making provision for and in relation to the practice and
procedure of prescribed courts in proceedings under this Act,
including provision prescribing the time within which any
proceeding may be started or anything else may be done, and
providing for the extension of any such time; and
(l) making transitional or consequential provisions as necessary
or convenient because of the repeal of the Designs Act 1906
and the enactment of this Act; and
(m) provide for regulations under the Designs Act 1906 to
continue to have effect (with any prescribed alterations) for
specified purposes of this Act; and
(n) providing for things to be done for the purposes of this Act or
the regulations by means of electronic equipment or
communication; and
(o) empowering the Registrar to prepare, publish and sell such
documents relating to designs as the Registrar thinks fit.
(3) Despite the repeal of the Designs Act 1906 by this Act, regulations
made under paragraph (2)(l) may provide for the continued
operation of specified provisions of the Designs Act 1906 in
relation to prescribed persons or matters, or in prescribed
circumstances.
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Chapter 12—Repeal, transitional and saving
provisions
Part 1—Repeal of Designs Act 1906
150 Repeal
The Designs Act 1906 is repealed.
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Part 2—Transitional and saving provisions
151 Application of this Act to certain designs
(1) This section applies to the following designs:
(a) a design registered under the old Act immediately before the
commencing day;
(b) a design registered after the commencing day as a result of a
design application to which the old Act continued to apply
because of section 153.
(2) The design:
(a) is taken to be registered under this Act:
(i) in the case of a design mentioned in paragraph (1)(a)—
on and from the commencing day; and
(ii) in the case of a design mentioned in paragraph (1)(b)—
on and from the day on which the design was registered;
and
(b) is taken to have been examined by the Registrar under Part 3
of Chapter 5 and a certificate of examination is taken to have
been issued under section 67.
(3) However, despite subsection (2):
(a) the old Act continues to apply for the purposes of
determining the validity of the registration of the design; and
(b) this Act does not apply for the purposes of determining the
validity of the registration of the design; and
(c) the design must not be examined under Chapter 5.
152 Term of registration of certain designs
Despite section 151:
(a) the term of registration of a design to which that section
applies ceases to be in force on the day on which it would
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have ceased to be in force under the old Act if the old Act
had not been repealed; and
(b) section 27A of the old Act continues to apply to the design as
if the old Act had not been repealed.
153 Applications made before commencing day
(1) The old Act continues to apply to an application made under the
old Act before the commencing day as if the old Act had not been
repealed, unless a conversion request is made under section 159 in
respect of the application.
(2) However, an application for an extension of time in relation to an
application mentioned in subsection (1) must be made under
section 137 of this Act.
(3) If, after dealing with an application under the old Act, the Registrar
is required to register the design to which the application relates,
the Registrar must comply with section 45 of this Act in relation to
the registration of the design.
154 Other applications and proceedings
(1) This Act applies, on and after the commencing day, to any
application, request, action or proceeding made or started under the
old Act and not finally dealt with under that Act before that day as
if the application, request, action or proceeding had been made or
started under a corresponding provision of this Act.
(2) Subsection (1) does not apply to:
(a) an application to which the old Act continues to apply under
section 153; or
(b) a proceeding to which the old Act continues to apply under
section 155.
Note: Section 152 deals with the application of section 27A of the old Act.
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155 Pending proceedings
(1) If proceedings arising from an application to a court under the old
Act were pending immediately before the commencing day, the
matter is to be decided as if the old Act had not been repealed.
(2) However, any order made by a court in relation to rectification
must relate to the Register under this Act.
156 Infringement under old Act
(1) This section applies to the following designs:
(a) a design that was at any time registered under the old Act and
had not been expunged from the Register under the old Act
(whether or not the design is a design to which section 151
applies); and
(b) a design that was registered after the commencing day as a
result of an application to which the old Act applied because
of section 153.
(2) If:
(a) either of the following applies:
(i) a person engages, before the commencing day, in
conduct that infringed the monopoly in the design under
the old Act;
(ii) a person engages, after the commencing day, in conduct
that would have infringed the monopoly in the design
under the old Act if that Act were still in force; and
(b) an action relating to that infringement was not pending
immediately before the commencing day;
an action may be brought under this Act for infringement of the
design.
(3) However, in an action under subsection (2):
(a) the old Act continues to apply for the purposes of
determining whether the person’s conduct infringed the
monopoly in the design; and
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(b) this Act does not apply for the purposes of determining
whether the person’s conduct infringed the monopoly in the
design; and
(c) a person is not entitled to any injunction or other relief to
which the person would not have been entitled under the old
Act.
(4) Subsection (2) is subject to any law with respect to the time period
within which an action of a kind mentioned in that subsection may
be started.
157 Registrar and Deputy Registrar
A person who held office as the Registrar, or as a Deputy
Registrar, under the old Act immediately before the commencing
day continues to hold office as the Registrar or Deputy Registrar
(as the case requires) under this Act on and after that day.
158 The Register
On and after the commencing day, the Register within the meaning
of the old Act is taken to be the Register within the meaning of this
Act.
159 Conversion of transitional applications
(1) A person who has made a transitional application may request that
the transitional application be treated as a converted application.
This is a conversion request.
(2) A conversion request must be:
(a) made before the end of the prescribed period; and
(b) in writing and filed; and
(c) made in accordance with any requirements prescribed by the
regulations.
(3) If a conversion request is made in respect of a transitional
application, nothing that has been done under the old Act in
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relation to the application before the request was made is taken to
constitute an examination under Chapter 5.
(4) If a conversion request is made in respect of a transitional
application, the application is taken to be a converted application
from the date of the conversion request.
160 Effect of a converted application
(1) A converted application is taken to be an application made under
this Act, subject to the modifications set out in this section.
(2) The filing date of a converted application is taken under section 26
of this Act to be the filing date of the transitional application.
(3) The priority date of a design disclosed in a converted application is
taken under section 27 of this Act to be the same priority date as it
had under the transitional application.
(4) A converted application is taken to meet the minimum filing
requirements mentioned in subsection 21(2) of this Act.
(5) A converted application is taken to include a request under
section 35 of this Act for registration of each of the designs
disclosed in the converted application.
(6) The term of registration of a design disclosed in a converted
application is taken under section 46 of this Act to start from the
date of the conversion request under subsection 159(1).
(7) An amendment requested under section 22B of the old Act in
relation to a transitional application to which a converted
application relates is taken to be an amendment requested under
section 28 of this Act.
(8) If:
(a) a converted application is amended under section 28 of this
Act to exclude one or more of the designs disclosed in the
converted application; and
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(b) the applicant files a design application under section 23 of
this Act in respect of one or more of the excluded designs;
the term of registration of the excluded designs starts from the date
of the conversion request under subsection 159(1).
160A Approvals under subsection 40A(6) of old Act
An approval that was in force under subsection 40A(6) of the old
Act immediately before the commencing day has effect on and
after that day as if it were an approval under subsection 99(2) of
this Act.
161 Definitions
In this Chapter:
commencing day means the day on which this section commences.
old Act means the Designs Act 1906.
transitional application means an application for registration of a
design that:
(a) is made under the old Act before the commencing day; and
(b) is not a lapsed application; and
(c) is not in relation to a design that has been registered or
refused registration.
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Endnotes
Endnote 1—About the endnotes
114 Designs Act 2003
Compilation No. 11 Compilation date: 26/2/15 Registered: 4/3/15
Endnotes
Endnote 1—About the endnotes
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Endnotes about misdescribed amendments and other matters are included in a
compilation only as necessary.
Abbreviation key—Endnote 2
The abbreviation key sets out abbreviations that may be used in the endnotes.
Legislation history and amendment history—Endnotes 3 and 4
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that
has amended (or will amend) the compiled law. The information includes
commencement details for amending laws and details of any application, saving
or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at
the provision (generally section or equivalent) level. It also includes information
about any provision of the compiled law that has been repealed in accordance
with a provision of the law.
Misdescribed amendments
A misdescribed amendment is an amendment that does not accurately describe
the amendment to be made. If, despite the misdescription, the amendment can
be given effect as intended, the amendment is incorporated into the compiled
law and the abbreviation “(md)” added to the details of the amendment included
in the amendment history.
If a misdescribed amendment cannot be given effect as intended, the
amendment is set out in the endnotes.
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Endnote 2—Abbreviation key
Designs Act 2003 115
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Endnote 2—Abbreviation key
A = Act orig = original
ad = added or inserted par = paragraph(s)/subparagraph(s)
am = amended /sub-subparagraph(s)
amdt = amendment pres = present
c = clause(s) prev = previous
C[x] = Compilation No. x (prev…) = previously
Ch = Chapter(s) Pt = Part(s)
def = definition(s) r = regulation(s)/rule(s)
Dict = Dictionary Reg = Regulation/Regulations
disallowed = disallowed by Parliament reloc = relocated
Div = Division(s) renum = renumbered
exp = expires/expired or ceases/ceased to have rep = repealed
effect rs = repealed and substituted
F = Federal Register of Legislative Instruments s = section(s)/subsection(s)
gaz = gazette Sch = Schedule(s)
LI = Legislative Instrument Sdiv = Subdivision(s)
LIA = Legislative Instruments Act 2003 SLI = Select Legislative Instrument
(md) = misdescribed amendment SR = Statutory Rules
mod = modified/modification Sub-Ch = Sub-Chapter(s)
No. = Number(s) SubPt = Subpart(s)
o = order(s) underlining = whole or part not
Ord = Ordinance commenced or to be commenced
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Endnote 3—Legislation history
116 Designs Act 2003
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Endnote 3—Legislation history
Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
Designs Act 2003 147, 2003 17 Dec
2003
s 3–161: 17 June 2004
(s 2(1) item 2)
Remainder: 17 Dec 2003
(s 2(1) item 1)
Intellectual Property
Laws Amendment Act
2006
106, 2006 27 Sept
2006
Sch 12 (items 1, 2): 27
Mar 2007 (s 2(1) item
12)
Sch 15 (item 1): 28 Sept
2006 (s 2(1) item 13)
—
Personal Property
Securities
(Consequential
Amendments) Act 2009
131, 2009 14 Dec
2009
Sch 2 (items 1–7): 30
Jan 2012 (s 2(1) item 1)
Sch 2 (item 7)
Personal Property
Securities (Corporations
and Other Amendments)
Act 2010
96, 2010 6 July 2010 Sch 3 (item 1): 30 Jan
2012 (s 2(1) item 8)
—
Acts Interpretation
Amendment Act 2011
46, 2011 27 June
2011
Sch 2 (item 532) and
Sch 3 (items 10, 11): 27
Dec 2011 (s 2(1) items 3,
12)
Sch 3 (items 10,
11)
Intellectual Property
Laws Amendment
(Raising the Bar) Act
2012
35, 2012 15 Apr
2012
Sch 6 (items 1–22): 15
Apr 2013 (s 2(1) item 5)
—
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Endnote 3—Legislation history
Designs Act 2003 117
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Act Number
and year
Assent Commencement Application,
saving and
transitional
provisions
as amended by
Statute Law Revision
Act (No. 1) 2014
31, 2014 27 May
2014
Sch 2 (item 5): 15 Apr
2013 (s 2(1) item 6)
—
Federal Circuit Court of
Australia (Consequential
Amendments) Act 2013
13, 2013 14 Mar
2013
Sch 3 (items 1–21): 15
Apr 2013 (s 2(1) item 4)
—
Intellectual Property
Laws Amendment Act
2015
8, 2015 25 Feb
2015
Sch 4 (items 1–4):
awaiting commencement
(s 2(1) item 5)
Sch 5 (items 1–4, 7): 26
Feb 2015 (s 2(1) item 6)
Sch 5 (item 7)
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Endnote 4—Amendment history
118 Designs Act 2003
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Endnote 4—Amendment history
Provision affected How affected
Chapter 1
Part 2
s 5 ..................................................am No 131, 2009; No 96, 2010; No 35, 2012; No 13, 2013
s 5A ...............................................ad No 35, 2012
Chapter 2
Part 2
s 12 ................................................am No 131, 2009
Part 4
Division 1
s 15 ................................................am No 46, 2011
Chapter 3
Part 3
s 28 ................................................am No 35, 2012; No 13, 2013
Chapter 4
Part 3
Division 3
s 50 ................................................am No 35, 2012; No 13, 2013
Division 4
s 52 ................................................am No 35, 2012; No 13, 2013
s 54 ................................................am No 35, 2012; No 13, 2013
Chapter 5
Part 3
s 67 ................................................am No 35, 2012; No 13, 2013
s 68 ................................................am No 35, 2012; No 13, 2013
s 69 ................................................am No 8, 2015
Chapter 7
Part 1
s 82 ................................................am No 35, 2012; No 13, 2013
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Endnote 4—Amendment history
Designs Act 2003 119
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Provision affected How affected
Part 2
s 83 ................................................am No 35, 2012; No 13, 2013
s 83A .............................................ad No 35, 2012
am No 13, 2013
s 84 ................................................am No 35, 2012; No 13, 2013
s 85 ................................................am No 35, 2012
s 86 ................................................am No 35, 2012; No 13, 2013
s 87 ................................................am No 35, 2012; No 13, 2013
s 88 ................................................am No 35, 2012; No 13, 2013
s 89 ................................................am No 35, 2012; No 13, 2013
Chapter 9
s 118 ..............................................am No 131, 2009
s 119 ..............................................am No 131, 2009
Chapter 10
s 124 ..............................................am No 106, 2006
s 125 ..............................................am No 35, 2012
Chapter 11
Part 1
s 129 ..............................................am No 106, 2006
Part 4A
Part 4A ..........................................ad No 106, 2006
s 136A ...........................................ad No 106, 2006
am No 35, 2012
Part 6
s 144 ..............................................rs No 35, 2012
s 149 ..............................................am No 8, 2015
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