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Designs Act 1953 Public Act 1953 No 65

Date of assent 26 November 1953 Commencement see section 1(2)

Contents Page

Title 3 1 Short Title and commencement 3 2 Interpretation 4 3 Commissioner and Assistant Commissioners of Designs 5 4 Powers of Assistant Commissioners of Designs 6 4A Power of Commissioner to delegate 6 4B Liability of Commissioner and others 6

Registrable designs and proceedings for registration 5 Designs registrable under Act 6 6 Proprietorship of designs 7 7 Proceedings for registration 7 8 Registration of same design in respect of other articles, etc 8 9 Provisions for ensuring secrecy in respect of designs relevant for

defence purposes 8

10 Provisions as to confidential disclosure, etc 10 Effect of registration, etc

11 Right given by registration 11

Note Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

This Act is administered by the Ministry of Business, Innovation, and Employment.

Reprint as at 14 March 2018

12 Period of copyright 11 13 Exemption of innocent infringer from liability for damages, etc 11 14 Compulsory licence in respect of registered design 12 15 Cancellation of registration 12

Use of registered designs for services of the Crown 16 Use of registered designs for services of the Crown 13 17 Rights of third parties in respect of Crown use 14 18 Reference of disputes as to Crown use 15 19 Special provisions as to Crown use during emergency 16

International arrangements 20 Orders in Council as to convention countries 17 21 Registration of design where application for protection in

convention country has been made 18

22 Extension of time for applications under section 21 in certain cases 19 23 Protection of designs communicated under arrangements with

other countries 20

24 Regulations under section 22 or section 23 21 Register of designs, etc

25 Register of designs 21 26 Certificate of registration 21 27 Registration of assignments, etc 22 27A Application of Personal Property Securities Act 1999 23 28 Rectification of register by the court 23 29 Power of Commissioner to correct errors 23 29A Power of Commissioner to alter certain inconsistent information 24 30 Inspection of registered designs 24 31 Information as to existence of copyright 25 32 Evidence of entries, documents, etc 25

Legal proceedings and appeals 33 Certificate of contested validity of registration 26 34 Remedy for groundless threats of infringement proceedings 26 35 Appeal to High Court 27

Powers and duties of Commissioner 36 Exercise of discretionary powers of Commissioner 27 37 Commissioner may grant extension of time 27 37A Additional provisions for extending time limits 28 38 Costs and security for costs 29 39 Evidence before Commissioner 29 40 Recognition of agents 30 41 Commissioner may dispense with production of probate or letters

of administration in certain cases 30

Designs Act 1953 Reprinted as at 14 March 2018

Restoration of lapsed copyright in registered design 41A Restoration of lapsed copyright in registered design 31 41B Persons who may make request for restoration of copyright 31 41C When request for restoration of copyright may be made 32 41D Commissioner’s consideration of whether prima facie case has

been made out for restoration 32

41E Notice of opposition and reasonable opportunity to be heard 32 41F Order to be made on payment of unpaid fees 33

Restoration of design applications 41G Request for restoration of abandoned design application 33 41H When request for restoration of application may be made 34 41I Notice of opposition 34 41J Commissioner to determine matter 35

Offences 42 Offences in respect of designs required to be kept secret 35 43 Falsification of register, etc 36 44 Fine for falsely representing a design as registered 36

Supplemental 45 Opening hours of Intellectual Property Office of New Zealand 37 45A Closing of Intellectual Property Office of New Zealand at short

notice 37

46 Regulations 37 47 Fees 39 48 Service of notices 39 49 Annual report [Repealed] 40 50 Application of Act to Tokelau 40 51 Saving 40 52 Repeals and savings 40

Schedule Enactments repealed

An Act to consolidate and amend certain enactments relating to designs

1 Short Title and commencement (1) This Act may be cited as the Designs Act 1953. (2) This Act shall come into force on a day to be appointed for the commencement

thereof by the Governor-General by Proclamation. Section 1(2): this Act brought into force, on 1 January 1955, by the Designs Act Commencement Order 1954 (SR 1954/225).

Reprinted as at 14 March 2018 Designs Act 1953 s 1

2 Interpretation (1) In this Act, unless the context otherwise requires,—

article means any article of manufacture; and includes any part of an article if that part is made and sold separately assignee includes the personal representative of a deceased assignee; and refer- ences to the assignee of any person include references to the assignee of the personal representative or assignee of that person Commissioner means the Commissioner of Designs Commonwealth means the British Commonwealth of Nations; and includes every territory for whose international relations the Government of any country of the Commonwealth is responsible convention country, in any provision of this Act, means an entity for the time being declared by an order under section 20 to be a convention country for the purposes of that provision copyright has the meaning assigned to it by subsection (1) of section 11 court means the High Court design means features of shape, configuration, pattern, or ornament applied to an article by any industrial process or means, being features which in the fin- ished article appeal to and are judged solely by the eye; but does not include a method or principle of construction or features of shape or configuration which are dictated solely by the function which the article to be made in that shape or configuration has to perform government department means any department or instrument of the Execu- tive Government of New Zealand Journal means the journal published under section 206 of the Patents Act 2013 Ministry means the department of State that, with the authority of the Prime Minister, is for the time being responsible for the administration of this Act prescribed means prescribed by regulations made under this Act proprietor has the meaning assigned to it by section 6 registered proprietor means the person or persons for the time being entered in the register of designs as proprietor of the design set of articles means a number of articles of the same general character ordin- arily on sale or intended to be used together, to each of which the same design, or the same design with modifications or variations not sufficient to alter the character or substantially to affect the identity thereof, is applied.

(2) Any reference in this Act to an article in respect of which a design is registered shall, in the case of a design registered in respect of a set of articles, be con- strued as a reference to any article of that set.

s 2 Designs Act 1953 Reprinted as at 14 March 2018

(3) Any question arising under this Act as to whether a number of articles consti- tute a set of articles shall be determined by the Commissioner; and notwith- standing anything in this Act any determination of the Commissioner under this subsection shall be final.

(4) For the purposes of subsection (1) of section 21 and of section 23, the expres- sion personal representative, in relation to a deceased person, includes the legal representative of the deceased appointed in any country outside New Zea- land.

(5) In the case of an entity that is a convention country but is not a state, part of a state, or a territory for whose international relations a state is responsible,— (a) a reference in this Act to—

(i) application for protection in a country; or (ii) application for protection in respect of a country,— must be read as a reference to application for protection under the rules of the entity:

(b) a reference in this Act to the law of a convention country must be read as a reference to the rules of the entity:

(c) a reference in this Act to the Government of a convention country must be read as a reference to the governing body of the entity.

Compare: 1921–22 No 18 s 2; Registered Designs Act 1949 s 44 (UK)

Section 2(1) convention country: replaced, on 14 October 1999, by section 2(2) of the Designs Amendment Act 1999 (1999 No 120).

Section 2(1) court: amended, on 1 April 1980, pursuant to section 12 of the Judicature Amendment Act 1979 (1979 No 124).

Section 2(1) Journal: replaced, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

Section 2(1) Ministry: inserted, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

Section 2(5): inserted, on 14 October 1999, by section 2(3) of the Designs Amendment Act 1999 (1999 No 120).

3 Commissioner and Assistant Commissioners of Designs (1) The chief executive of the Ministry must appoint, under the State Sector Act

1988,— (a) the Commissioner of Designs; and (b) as many Assistant Commissioners of Designs as may be necessary for

the purposes of this Act. (2) These persons are employees of the Ministry, and those appointments may be

held separately or in conjunction with any other office in the Ministry. Section 3: replaced, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

Reprinted as at 14 March 2018 Designs Act 1953 s 3

4 Powers of Assistant Commissioners of Designs (1) An Assistant Commissioner of Designs has the functions, duties, and powers of

the Commissioner under this Act (other than the power to delegate under sec- tion 4A), but is subject to the control of the Commissioner.

(2) The fact that an Assistant Commissioner exercises those functions, duties, and powers is conclusive evidence of the authority to do so. Section 4: replaced, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

4A Power of Commissioner to delegate (1) The Commissioner may delegate to any person, either generally or particularly,

any of the Commissioner’s functions, duties, and powers (except this power of delegation).

(2) A delegation— (a) must be in writing; and (b) may be made subject to any restrictions and conditions that the Commis-

sioner thinks fit; and (c) is revocable at any time, in writing; and (d) does not prevent the performance or exercise of a function, duty, or

power by the Commissioner. (3) A person to whom any functions, duties, or powers are delegated may perform

and exercise them in the same manner and with the same effect as if they had been conferred directly by this Act and not by delegation.

(4) A person who appears to act under a delegation is presumed to be acting in ac- cordance with its terms in the absence of evidence to the contrary.

(5) Any reference in this Act or the regulations made under this Act to the Com- missioner includes a reference to the delegate in respect of anything delegated to that person. Section 4A: inserted, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

4B Liability of Commissioner and others The Commissioner, an Assistant Commissioner, or any other person acting on behalf of the Commissioner is not personally liable for any act or omission done in good faith in the performance or intended performance of the Commis- sioner’s functions, duties, or powers. Section 4B: inserted, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

Registrable designs and proceedings for registration

5 Designs registrable under Act (1) Subject to the following provisions of this section, a design may, upon applica-

tion made by the person claiming to be the proprietor, be registered under this Act in respect of any article or set of articles specified in the application.

s 4 Designs Act 1953 Reprinted as at 14 March 2018

(2) Subject to the provisions of this Act, a design shall not be registered thereunder unless it is new or original and in particular shall not be so registered in respect of any article if it is the same as a design which before the date of the applica- tion for registration has been registered or published in New Zealand in respect of the same or any other article or differs from such a design only in immaterial details or in features which are variants commonly used in the trade.

(3) Regulations made under this Act may provide for excluding from registration under this Act designs for such articles, being articles which are primarily liter- ary or artistic in character, as may be specified in the regulations. Compare: 1921–22 No 18 ss 2, 52; Registered Designs Act 1949 s 1 (UK)

6 Proprietorship of designs (1) Subject to the provisions of this section, the author of a design shall be treated

for the purposes of this Act as the proprietor of the design: provided that where the design is executed by the author for another person for good consideration, that other person shall be treated for the purposes of this Act as the proprietor.

(2) Where a design, or the right to apply a design to any article, becomes vested, whether by assignment, transmission, or operation of law, in any person other than the original proprietor, either alone or jointly with the original proprietor, that other person, or, as the case may be, the original proprietor and that other person, shall be treated for the purposes of this Act as the proprietor of the de- sign or as the proprietor of the design in relation to that article. Compare: 1921–22 No 18 s 52(1); Registered Designs Act 1949 s 2 (UK)

7 Proceedings for registration (1) An application for the registration of a design shall be made in the prescribed

form and shall be filed with the Commissioner in the prescribed manner. (2) For the purpose of deciding whether a design is new or original the Commis-

sioner may make such searches, if any, as he thinks fit. (3) The Commissioner may refuse any application for the registration of a design

or may register the design in pursuance of the application without modification or subject to such modifications as he thinks fit.

(4) An application which, owing to any default or neglect on the part of the appli- cant, has not been completed so as to enable registration to be effected within such time as may be prescribed shall be deemed to be abandoned.

(5) Except as otherwise expressly provided by this Act, a design when registered shall be registered as of the date on which the application for registration was made, or such other date (whether earlier or later than that date) as the Com- missioner may in any particular case direct:

Reprinted as at 14 March 2018 Designs Act 1953 s 7

provided that no proceedings shall be taken in respect of any infringement committed before the date on which the certificate of registration of the design under this Act is issued.

(6) An appeal to the court shall lie from any decision of the Commissioner under subsection (3). Compare: 1921–22 No 18 s 52; Registered Designs Act 1949 s 3 (UK)

Section 7(1): amended, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

8 Registration of same design in respect of other articles, etc (1) Where the registered proprietor of a design registered in respect of any article

makes an application— (a) for registration, in respect of 1 or more other articles, of the registered

design; or (b) for registration, in respect of the same or 1 or more other articles, of a

design consisting of the registered design with modifications or vari- ations not sufficient to alter the character or substantially to affect the identity thereof,—

the application shall not be refused and the registration made on that applica- tion shall not be invalidated by reason only of the previous registration or pub- lication of the registered design: provided that the period of copyright in a design registered by virtue of this section shall not extend beyond the expiration of the original and any extended period of copyright in the original registered design.

(2) Where any person makes an application for the registration of a design in re- spect of any article and either— (a) that design has been previously registered by another person in respect

of some other article; or (b) the design to which the application relates consists of a design previous-

ly registered by another person in respect of the same or some other art- icle with modifications or variations not sufficient to alter the character or substantially to affect the identity thereof,—

then, if at any time while the application is pending the applicant becomes the registered proprietor of the design previously registered, the foregoing provi- sions of this section shall apply as if at the time of making the application the applicant had been the registered proprietor of that design. Compare: 1921–22 No 18 s 53; 1939 No 26 s 69; Registered Designs Act 1949 s 4 (UK)

9 Provisions for ensuring secrecy in respect of designs relevant for defence purposes

(1) Where, either before or after the commencement of this Act, an application for the registration of a design has been made, and it appears to the Commissioner that the design is one of a class notified to him by the Minister of Defence as

s 8 Designs Act 1953 Reprinted as at 14 March 2018

relevant for defence purposes, or is in the opinion of the Commissioner likely to be valuable for defence purposes, he may give directions for prohibiting or restricting the publication of information with respect to the design, or the communication of such information to any person or class of persons specified in the directions.

(2) Regulations may be made under this Act for securing that the representation or specimen of a design in the case of which directions are given under this sec- tion shall not be open to inspection by the public during the continuance in force of the directions.

(3) Where the Commissioner gives any such directions as aforesaid, he shall give notice of the application and of the directions to the Minister of Defence, and thereupon the following provisions shall have effect, that is to say: (a) the Minister of Defence shall, upon receipt of the notice, consider

whether the publication of the design would be prejudicial to the defence of New Zealand, and, unless a notice under paragraph (c) has previously been given by the Minister of Defence to the Commissioner, shall recon- sider that question before the expiration of 9 months from the date of fil- ing of the application for registration of the design and at least once in every subsequent year:

(b) for the purpose aforesaid, the Minister of Defence may, at any time after the design has been registered or, with the consent of the applicant, at any time before the design has been registered, inspect the representation or specimen of the design filed in pursuance of the application:

(c) if upon consideration of the design at any time it appears to the Minister of Defence that the publication of the design would not, or would no longer, be prejudicial to the defence of New Zealand, the Minister of De- fence shall give notice to the Commissioner to that effect:

(d) on the receipt of any such notice the Commissioner shall revoke the di- rections and may, subject to such conditions, if any, as he thinks fit, ex- tend the time for doing anything required or authorized to be done by or under this Act in connection with the application or registration, whether or not that time has previously expired.

(4) No person resident in New Zealand shall, except under the authority of a writ- ten permit granted by or on behalf of the Commissioner, make or cause to be made any application outside New Zealand for the registration of a design of any class prescribed for the purposes of this subsection unless— (a) an application for registration of the same or substantially the same de-

sign has been made in New Zealand not less than 6 weeks before the ap- plication outside New Zealand; and

(b) either no directions have been given under subsection (1) in relation to the application in New Zealand or all such directions have been revoked:

Reprinted as at 14 March 2018 Designs Act 1953 s 9

provided that this subsection shall not apply in relation to a design for which an application for protection has first been filed in a country outside New Zealand by a person resident outside New Zealand. Compare: Registered Designs Act 1949 s 5 (UK)

Section 9(2): amended, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

10 Provisions as to confidential disclosure, etc (1) An application for the registration of a design shall not be refused, and the

registration of a design shall not be invalidated, by reason only of,— (a) the disclosure of the design by the proprietor to any other person in such

circumstances as would make it contrary to good faith for that other per- son to use or publish the design; or

(b) the disclosure of the design in breach of good faith by any person other than the proprietor of the design; or

(c) in the case of a new or original textile design intended for registration, the acceptance of a first and confidential order for goods bearing the de- sign.

(2) An application for the registration of a design shall not be refused and the registration of a design shall not be invalidated by reason only— (a) that a representation of the design, or any article to which the design has

been applied, has been displayed, with the consent of the proprietor of the design, at an international or industrial exhibition declared as such by the Commissioner by notice in the Journal, whether the exhibition is held in New Zealand or elsewhere; or

(b) that after any such display as aforesaid, and during the period of the ex- hibition, a representation of the design or any such article as aforesaid has been displayed by any person without the consent of the proprietor; or

(c) that a representation of the design has been published in consequence of any such display as is mentioned in paragraph (a),—

if the application for registration of the design is made not later than 6 months after the date of the opening of the exhibition.

(3) An application for the registration of a design shall not be refused, and the registration of a design shall not be invalidated, by reason only of the commu- nication of the design by the proprietor thereof to a government department or to any person authorized by a government department to consider the merits of the design, or of anything done in consequence of such a communication. Compare: 1921–22 No 18 ss 58, 63; Registered Designs Act 1949 s 6 (UK)

Section 10(2)(a): amended, on 2 September 1996, by section 2 of the Designs Amendment Act 1996 (1996 No 118).

Section 10(2)(a): amended, on 12 November 1980, by section 5(2) of the Shop Trading Hours Amendment Act 1980 (1980 No 36).

s 10 Designs Act 1953 Reprinted as at 14 March 2018

Effect of registration, etc

11 Right given by registration (1) The registration of a design under this Act shall give to the registered proprie-

tor the copyright in the design, that is to say, the exclusive right in New Zea- land to make or import for sale or for use for the purposes of any trade or busi- ness, or to sell, hire, or offer for sale or hire, any article in respect of which the design is registered, being an article to which the registered design or a design not substantially different from the registered design has been applied, and to make anything for enabling any such article to be made as aforesaid, whether in New Zealand or elsewhere.

(2) Subject to the provisions of this Act and of subsection (3) of section 7 of the Crown Proceedings Act 1950, the registration of a design shall have the same effect against the Crown as it has against a subject. Compare: 1921–22 No 18 ss 56(1), 66; Registered Designs Act 1949 s 7 (UK)

12 Period of copyright (1) Copyright in a registered design shall, subject to the provisions of this Act,

subsist for a period of 5 years from the date of registration. (2) The Commissioner shall extend the period of copyright for a second period of

5 years from the expiration of the original period, and for a third period of 5 years from the expiration of the second period, if an application for extension of the period of copyright for the second period or third period is made in the prescribed manner and the prescribed fee is also paid before the expiration of the original period or the second period, as the case may be, or if such applica- tion is made and the fee is paid within such further period (not exceeding 6 months) as may be specified in a request to the Commissioner and accompan- ied by the prescribed additional fee.

(3) Subsection (2) is subject to sections 41A to 41F (which provide for the restora- tion of lapsed copyright in a registered design). Compare: 1921–22 No 18 s 56; Registered Designs Act 1949 s 8 (UK)

Section 12(2): replaced, on 20 October 1972, by section 2 of the Designs Amendment Act 1972 (1972 No 53).

Section 12(2): amended, on 19 April 2011, by section 4(1) of the Designs Amendment Act 2010 (2010 No 15).

Section 12(3): inserted, on 19 April 2011, by section 4(2) of the Designs Amendment Act 2010 (2010 No 15).

13 Exemption of innocent infringer from liability for damages, etc (1) In proceedings for the infringement of copyright in a registered design, dam-

ages or account of profits shall not be awarded against a defendant who proves that at the date of the infringement he was not aware and had no reasonable ground for supposing that the design was registered in New Zealand; and a per- son shall not be deemed to have been aware or to have had any reasonable

Reprinted as at 14 March 2018 Designs Act 1953 s 13

ground for supposing as aforesaid by reason only of the marking of an article with the word “registered” or any abbreviation thereof, or any word or words expressing or implying that the design applied to the article has been regis- tered, unless the word or words are accompanied by the words “New Zealand” or the letters “NZ” and by the number of the design.

(2) Nothing in this section shall affect the power of the court to grant an injunction in any proceedings for infringement of copyright in a registered design. Compare: 1921–22 No 18 s 38; Registered Designs Act 1949 s 9 (UK)

14 Compulsory licence in respect of registered design (1) At any time after a design has been registered any person interested may apply

to the Commissioner for the grant of a compulsory licence in respect of the de- sign on the ground that the design is not applied in New Zealand by any indus- trial process or means to the article in respect of which it is registered to such an extent as is reasonable in the circumstances of the case; and the Commis- sioner may make such order on the application as he thinks fit.

(2) An order for the grant of a licence shall, without prejudice to any other method of enforcement, have effect as if it were a deed executed by the registered pro- prietor and all other necessary parties, granting a licence in accordance with the order.

(3) No order shall be made under this section which would be at variance with any treaty, convention, arrangement, or engagement applying to New Zealand and any convention country.

(4) An appeal to the court shall lie from any order of the Commissioner under this section. Compare: 1921–22 No 18 s 62; Registered Designs Act 1949 s 10 (UK)

15 Cancellation of registration (1) The Commissioner may, upon a request made in the prescribed manner by the

registered proprietor, cancel the registration of a design. (2) At any time after a design has been registered any person interested may apply

to the Commissioner for the cancellation of the registration of the design on the ground that the design was not, at the date of the registration thereof, new or original, or on any other ground on which the Commissioner could have re- fused to register the design; and the Commissioner may make such order on the application as he thinks fit.

(3) An appeal to the court shall lie from any order of the Commissioner under sub- section (2). Compare: 1921–22 No 18 s 61; Registered Designs Act 1949 s 11 (UK)

s 14 Designs Act 1953 Reprinted as at 14 March 2018

Use of registered designs for services of the Crown

16 Use of registered designs for services of the Crown (1) Notwithstanding anything in this Act, any government department, and any

person authorized in writing by a government department, may use any regis- tered design for the services of the Crown in accordance with the following provisions of this section.

(2) If and so far as the design has, before the date of registration thereof, been duly recorded by or applied by or on behalf of a government department otherwise than in consequence of the communication of the design directly or indirectly by the registered proprietor or any person from whom he derives title, any use of the design by virtue of this section may be made free of any royalty or other payment to the registered proprietor.

(3) If and so far as the design has not been so recorded or applied as aforesaid, any use of the design made by virtue of this section at any time after the date of registration thereof, or in consequence of any such communication as afore- said, shall be made upon such terms as may be agreed upon, either before or after the use, between the government department and the registered proprietor with the approval of the Minister of Finance, or as may in default of agreement be determined by the court on a reference under section 18.

(4) The authority of a government department in respect of a design may be given under this section either before or after the design is registered and either be- fore or after the acts in respect of which the authority is given are done, and may be given to any person whether or not he is authorized directly or indirect- ly by the registered proprietor to use the design.

(5) Where any use of a design is made by or with the authority of a government department under this section then, unless it appears to the department that it would be contrary to the public interest so to do, the department shall notify the registered proprietor as soon as practicable after the use is begun, and furnish him with such information as to the extent of the use as he may from time to time require.

(6) For the purposes of this section and of section 17, any use of a design for the supply to the Government of any country outside New Zealand, in pursuance of any agreement or arrangement between Her Majesty’s Government in New Zealand and the Government of that country, of articles required for the de- fence of that country shall be deemed to be a use of the design for the services of the Crown; and the power of a government department or a person author- ized by a government department under this section to use a design shall in- clude power— (a) to sell such articles to the Government of any country in pursuance of

any such agreement or arrangement as aforesaid; and

Reprinted as at 14 March 2018 Designs Act 1953 s 16

(b) to sell to any person any articles made in the exercise of the powers con- ferred by this section which are no longer required for the purpose for which they were made.

(7) The purchaser of any articles sold in the exercise of powers conferred by this section, and any person claiming through him, shall have power to deal with them in the same manner as if the rights in the registered design were held on behalf of Her Majesty. Compare: Registered Designs Act 1949 First Schedule paragraph 1 (UK)

17 Rights of third parties in respect of Crown use (1) In relation to any use of a registered design, or a design in respect of which an

application for registration is pending, made for the services of the Crown— (a) by a government department or a person authorized by a government de-

partment under section 16; or (b) by the registered proprietor or applicant for registration to the order of a

government department,— the provisions of any licence, assignment, or agreement made, whether before or after the commencement of this Act, between the registered proprietor or ap- plicant for registration or any person who derives title from him or from whom he derives title and any person other than a government department shall be of no effect so far as those provisions restrict or regulate the use of the design, or any model, document, or information relating thereto, or provide for the mak- ing of payments in respect of any such use, or calculated by reference thereto; and the reproduction or publication of any model or document in connection with the said use shall not constitute an infringement of any copyright subsist- ing in the model or document.

(2) Where an exclusive licence granted otherwise than for royalties or other bene- fits determined by reference to the use of the design is in force under the regis- tered design, then,— (a) in relation to any use of the design which, but for the provisions of this

section and section 16, would constitute an infringement of the rights of the licensee, subsection (3) of section 16 shall have effect as if for the reference to the registered proprietor there were substituted a reference to the licensee; and

(b) in relation to any use of the design by the licensee by virtue of an author- ity given under section 16, that section shall have effect as if subsection (3) of that section were omitted.

(3) Subject to the provisions of subsection (2), where the registered design or the right to apply for or obtain registration of the design has been assigned to the registered proprietor in consideration of royalties or other benefits determined by reference to the use of the design, then,—

s 17 Designs Act 1953 Reprinted as at 14 March 2018

(a) in relation to any use of the design by virtue of section 16, subsection (3) of that section shall have effect as if the reference to the registered pro- prietor included a reference to the assignor, and any sum payable by vir- tue of that subsection shall be divided between the registered proprietor and the assignor in such proportion as may be agreed upon between them or as may in default of agreement be determined by the court on a reference under section 18; and

(b) in relation to any use of the design made for the services of the Crown by the registered proprietor to the order of a government department, subsection (3) of section 16 shall have effect as if that use were made by virtue of an authority given under that subsection.

(4) Where, under subsection (3) of section 16, payments are required to be made by a government department to a registered proprietor in respect of any use of a design, any person being the holder of an exclusive licence under the registered design (not being such a licence as is mentioned in subsection (2) of this sec- tion) authorizing him to make that use of the design shall be entitled to recover from the registered proprietor such part (if any) of those payments as may be agreed upon between that person and the registered proprietor, or as may in de- fault of agreement be determined by the court under section 18 to be just hav- ing regard to any expenditure incurred by that person— (a) in developing the said design; or (b) in making payments to the registered proprietor, other than royalties or

other payments determined by reference to the use of the design, in con- sideration of the licence,—

and if, at any time before the amount of any such payment has been agreed upon between the government department and the registered proprietor, that person gives notice in writing of his interest to the department, any agreement as to the amount of that payment shall be of no effect unless it is made with his consent.

(5) In this section exclusive licence means a licence from the registered proprietor which confers on the licensee, or on the licensee and persons authorized by him, to the exclusion of all other persons (including the registered proprietor), any right in respect of the registered design. Compare: Registered Designs Act 1949 First Schedule paragraph 2 (UK)

18 Reference of disputes as to Crown use (1) Any dispute as to the exercise by a government department or a person author-

ized by a government department of the powers conferred by section 16, or as to terms for the use of a design for the services of the Crown thereunder, or as to the right of any person to receive any part of a payment made in pursuance of subsection (3) of that section, may be referred to the court by either party to the dispute in such manner as may be prescribed by rules of court.

Reprinted as at 14 March 2018 Designs Act 1953 s 18

(2) In any proceedings under this section to which a government department is a party, the department may,— (a) if the registered proprietor is a party to the proceedings, apply for can-

cellation of the registration of the design upon any ground upon which the registration of a design may be cancelled on an application to the court under section 28;

(b) in any case, put in issue the validity of the registration of the design without applying for its cancellation.

(3) If in such proceedings as aforesaid any question arises whether a design has been recorded or applied as mentioned in section 16, and the disclosure of any document recording the design, or of any evidence of the application thereof, would in the opinion of the department be prejudicial to the public interest, the disclosure may be made confidentially to counsel for the other party or to an independent expert mutually agreed upon.

(4) In determining under this paragraph any dispute between a government depart- ment and any person as to terms for the use of a design for the services of the Crown, the court shall have regard to any benefit or compensation which that person or any person from whom he derives title may have received, or may be entitled to receive, directly or indirectly from any government department in respect of the design in question.

(5) In any proceedings under this section the court may at any time order the whole proceedings or any question or issue of fact arising therein to be referred to a special or official referee or an arbitrator on such terms as the court may direct; and references to the court in the foregoing provisions of this section shall be construed accordingly. Compare: Registered Designs Act 1949 First Schedule paragraph 3 (UK)

19 Special provisions as to Crown use during emergency (1) During any period of emergency within the meaning of this section the powers

exercisable in relation to a design by a government department, or a person au- thorized by a government department under section 16, shall include power to use the design for any purpose which appears to the department necessary or expedient— (a) for the efficient prosecution of any war in which Her Majesty may be en-

gaged; or (b) for the maintenance of supplies and services essential to the life of the

community; or (c) for securing a sufficiency of supplies and services essential to the well-

being of the community; or (d) for promoting the productivity of industry, commerce, and agriculture; or

s 19 Designs Act 1953 Reprinted as at 14 March 2018

(e) for fostering and directing exports and reducing imports, or imports of any classes, from all or any countries and for redressing the balance of trade; or

(f) generally for ensuring that the whole resources of the community are available for use, and are used, in a manner best calculated to serve the interests of the community; or

(g) for assisting the relief of suffering and the restoration and distribution of essential supplies and services in any part of the Commonwealth or of the Republic of Ireland or in any foreign countries that are in grave dis- tress as a result of war; or

(h) for providing or securing supplies and services required for the defence of any part of the Commonwealth or for the maintenance or restoration of peace and security in any part of the world, or for any measures aris- ing out of a breach or apprehended breach of peace in any part of the world; or

(i) for preventing supplies or services being disposed of in a manner preju- dicial to the defence of any part of the Commonwealth or to peace and security in any part of the world or to any such measures as aforesaid,—

and any reference in sections 16 to 18 to the services of the Crown shall be construed as including a reference to the purposes aforesaid.

(2) In this section the expression period of emergency means any period begin- ning on such date as may be declared by Order in Council published in the Gazette to be the commencement, and ending on such date as may be so de- clared to be the termination, of a period of emergency for the purpose of this section.

(3) All Orders in Council made under this section shall be laid before Parliament within 28 days after the date of the making thereof if Parliament is then in ses- sion, and, if not, shall be laid before Parliament within 28 days after the date of the commencement of the next ensuing session. Compare: Registered Designs Act 1949 First Schedule paragraph 4 (UK)

International arrangements

20 Orders in Council as to convention countries For the purpose of giving effect to any international agreement or arrangement to which New Zealand is a party or that applies to New Zealand, the Governor- General may by Order in Council declare that any entity specified in the order that is a party to the agreement or arrangement or to which the agreement or arrangement applies (whether a state, part of a state, a territory for whose inter- national relations a state is responsible, a political union, an international or- ganisation, or any other entity) is, for the purposes of all or any of the provi- sions of this Act, a convention country.

Reprinted as at 14 March 2018 Designs Act 1953 s 20

Section 20: replaced, on 14 October 1999, by section 2(1) of the Designs Amendment Act 1999 (1999 No 120).

21 Registration of design where application for protection in convention country has been made

(1) An application for registration of a design in respect of which protection has been applied for in a convention country may be made in accordance with the provisions of this Act by the person by whom the application for protection was made or his personal representative or assignee: provided that no application shall be made by virtue of this section after the ex- piration of 6 months from the date of the application for protection in a conven- tion country or, where more than 1 such application for protection has been made, from the date of the first application.

(2) A design registered on an application made by virtue of this section shall be registered as of the date of the application for protection in the convention country, or where more than 1 such application for protection has been made, the date of the first such application: provided that no proceedings shall be taken in respect of any infringement committed before the date on which the certificate of registration of the design under this Act is issued.

(3) An application for the registration of a design made by virtue of this section shall not be refused, and the registration of a design on such an application shall not be invalidated, by reason only of the registration or publication of the design in New Zealand during the period specified in the proviso to subsection (1) as that within which the application for registration may be made.

(4) Where a person has applied for protection for a design by an application which,— (a) in accordance with the terms of a treaty subsisting between 2 or more

convention countries, is equivalent to an application duly made in any one of those convention countries; or

(b) in accordance with the law of any convention country, is equivalent to an application duly made in that convention country,—

he shall be deemed for the purposes of this section to have applied in that con- vention country.

(5) For the purposes of this section, where more than 1 application for protection in a convention country has been made, the first application may be disregar- ded and the second application shall be substituted for the first application where— (a) the first application was made in or in respect of the same convention

country and by the same applicant as the second application; and (b) not later than the date of filing of the second application, the first appli-

cation was unconditionally withdrawn, abandoned, or refused; and

s 21 Designs Act 1953 Reprinted as at 14 March 2018

(c) the first application had not been made available to the public in New Zealand or elsewhere before its unconditional withdrawal, abandonment, or refusal; and

(d) no rights remain outstanding in respect of the first application; and (e) the first application has not served as a basis for claiming a right of pri-

ority in relation to another application in any country. Compare: 1939 No 26 s 55; Registered Designs Act 1949 s 14 (UK)

Section 21(5): inserted, on 2 September 1996, by section 3 of the Designs Amendment Act 1996 (1996 No 118).

22 Extension of time for applications under section 21 in certain cases (1) If the Governor-General is satisfied that provision substantially equivalent to

the provision to be made by or under this section has been or will be made under the law of any convention country, he may, by Order in Council, make regulations empowering the Commissioner to extend the time for making ap- plication under subsection (1) of section 21 for registration of a design in re- spect of which protection has been applied for in that country in any case where the period specified in the proviso to that subsection expires during a period prescribed by the regulations.

(2) Regulations made under this section— (a) may, where any agreement or arrangement has been made between Her

Majesty’s Government in New Zealand and the Government of the con- vention country for the supply or mutual exchange of information or art- icles, provide, either generally or in any class of case specified in the regulations, that an extension of time shall not be granted under this sec- tion unless the design has been communicated in accordance with the agreement or arrangement:

(b) may, either generally or in any class of case specified in the regulations, fix the maximum extension which may be granted under this section:

(d) may empower the Commissioner to extend, in relation to an application made by virtue of this section, the time limited by or under the foregoing provisions of this Act for doing any act, subject to such conditions, if any, as may be imposed by or under the regulations:

(e) may provide for securing that the rights conferred by registration on an application made by virtue of this section shall be subject to such restric- tions or conditions as may be specified by or under the regulations and in particular to restrictions and conditions for the protection of persons (including persons acting on behalf of Her Majesty) who, otherwise than as the result of a communication made in accordance with such an agree- ment or arrangement as is mentioned in paragraph (a), and before the

Reprinted as at 14 March 2018 Designs Act 1953 s 22

date of the application in question or such later date as may be allowed by the regulations, may have imported or made articles to which the de- sign is applied or may have made an application for registration of the design.

Compare: 1943 No 6 s 5; Registered Designs Act 1949 s 15 (UK)

23 Protection of designs communicated under arrangements with other countries

(1) Subject to the provisions of this section, regulations may be made under this Act for securing that, where a design has been communicated in accordance with an agreement or arrangement made between Her Majesty’s Government in New Zealand and the Government of any other country for the supply or mutu- al exchange of information or articles,— (a) an application for the registration of the design made by the person from

whom the design was communicated, or his personal representative or assignee, shall not be prejudiced, and the registration of the design in pursuance of such an application shall not be invalidated, by reason only that the design has been communicated as aforesaid or that in conse- quence thereof— (i) the design has been published or applied; or (ii) an application for registration of the design has been made by any

other person, or the design has been registered on such an applica- tion:

(b) any application for the registration of a design made in consequence of such a communication as aforesaid may be refused and any registration of a design made on such an application may be cancelled.

(2) Regulations made under subsection (1) may provide that the publication or ap- plication of a design, or the making of any application for registration thereof, shall, in such circumstances and subject to such conditions or exceptions as may be prescribed by the regulations be presumed to have been in consequence of such a communication as is mentioned in that subsection.

(3) The power to make regulations under this section, so far as it is exercisable for the benefit of persons from whom designs have been communicated to Her Majesty’s Government in New Zealand by the Government of any other coun- try, shall only be exercised if and to the extent that the Governor-General is satisfied that substantially equivalent provision has been or will be made under the law of that country for the benefit of persons from whom designs have been communicated by Her Majesty’s Government in New Zealand to the Govern- ment of that country.

(4) References in subsection (3) to the communication of a design to or by Her Majesty’s Government in New Zealand or the Government of any other coun- try shall be construed as including references to the communication of the de-

s 23 Designs Act 1953 Reprinted as at 14 March 2018

sign by or to any person authorized in that behalf by the Government in ques- tion. Compare: 1946 No 32 s 4; Registered Designs Act 1949 s 16 (UK)

24 Regulations under section 22 or section 23 Any regulations made under section 22 or section 23, and any order made, di- rection given, or other action taken under the regulations by the Commissioner, may be made, given, or taken so as to have effect as respects things done or omitted to be done on or after such date, whether before or after the coming into operation of the regulations or of this Act, as may be specified in the regu- lations. Compare: 1943 No 6 s 7; Registered Designs Act 1949 s 37(2) (UK)

Register of designs, etc

25 Register of designs (1) There shall be kept under the control of the Commissioner a register of designs,

in which there shall be entered the names and addresses of proprietors of regis- tered designs, notices of assignments and of transmissions of registered de- signs, and such other matters as may be prescribed or as the Commissioner may think fit.

(2) Subject to the provisions of this Act and to regulations made thereunder, the register of designs shall, at all convenient times, be open to inspection by the public; and certified copies of any entry in the register shall be given to any person requiring them on payment of the prescribed fee.

(3) The register of designs shall be prima facie evidence of any matters required or authorized by this Act to be entered therein.

(4) No notice of any trust, whether expressed, implied, or constructive, shall be en- tered in the register of designs, and the Commissioner shall not be affected by any such notice. Compare: 1921–22 No 18 ss 55, 118, 119; Registered Designs Act 1949 s 17 (UK)

Section 25(1): amended, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

Section 25(2): amended, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

26 Certificate of registration (1) The Commissioner shall grant a certificate of registration in the prescribed

form to the registered proprietor of a design when the design is registered. (2) The Commissioner may, in a case where he is satisfied that the certificate of

registration has been lost or destroyed, or in any other case in which he thinks

Reprinted as at 14 March 2018 Designs Act 1953 s 26

it expedient, on application made to him in the prescribed manner and on pay- ment of the prescribed fee, furnish a further certificate. Compare: 1921–22 No 18 s 54; Registered Designs Act 1949 s 18 (UK)

27 Registration of assignments, etc (1) Where any person becomes entitled by assignment, transmission, or operation

of a law to a registered design or to a share in a registered design, or becomes entitled as mortgagee, licensee, or otherwise to any other interest in a registered design, he shall apply to the Commissioner in the prescribed manner for the registration of his title as proprietor or co-proprietor, or, as the case may be, of notice of his interest, in the register of designs.

(2) Without prejudice to the provisions of subsection (1), an application for the registration of the title of any person becoming entitled by assignment to a registered design or a share in a registered design, or becoming entitled by vir- tue of a mortgage, licence, or other instrument to any other interest in a regis- tered design, may be made in the prescribed manner by the assignor, mortga- gor, licensor, or other party to that instrument, as the case may be.

(3) Where application is made under this section for the registration of the title of any person, the Commissioner shall, upon proof of title to his satisfaction,— (a) where that person is entitled to a registered design or a share in a regis-

tered design, register him in the register of designs as proprietor or co- proprietor of the design, and enter in that register particulars of the in- strument or event by which he derives title; or

(b) where that person is entitled to any other interest in the registered de- sign, enter in that register notice of his interest, with particulars of the instrument (if any) creating it.

(4) Subject to any rights vested in any other person of which notice is entered in the register of designs, the person or persons registered as proprietor of a regis- tered design shall have power to assign, grant licences under, or otherwise deal with the design, and to give effectual receipts for any consideration for any such assignment, licence, or dealing: provided that any equities in respect of the design may be enforced in like man- ner as in respect of any other personal property.

(5) Except for the purposes of an application to rectify the register under the fol- lowing provisions of this Act, a document in respect of which no entry has been made in the register of designs under subsection (3) shall not be admitted in any court as evidence of the title of any person to a registered design or share of or interest in a registered design unless the court otherwise directs. Compare: 1921–22 No 18 s 122; Registered Designs Act 1949 s 19 (UK)

s 27 Designs Act 1953 Reprinted as at 14 March 2018

27A Application of Personal Property Securities Act 1999 Nothing in sections 25 to 27 affects the operation of the Personal Property Se- curities Act 1999. Section 27A: inserted, on 1 May 2002, by section 191(1) of the Personal Property Securities Act 1999 (1999 No 126).

28 Rectification of register by the court (1) The court may, on the application of any person aggrieved, order the register of

designs to be rectified by the making of any entry therein or the variation or deletion of any entry therein.

(2) In proceedings under this section the court may determine any question which it may be necessary or expedient to decide in connection with the rectification of the register.

(3) Notice of any application to the court under this section shall be given in the prescribed manner to the Commissioner, who shall be entitled to appear and be heard on the application, and shall appear if so directed by the court.

(4) Any order made by the court under this section shall direct that notice of the order shall be served on the Commissioner in the prescribed manner; and the Commissioner shall, on receipt of the notice, rectify the register accordingly. Compare: 1921–22 No 18 s 123; Registered Designs Act 1949 s 20 (UK)

29 Power of Commissioner to correct errors (1) Where a mistake exists in the register of designs or in any document issued

under this Act by reason of any error or omission on the part of the Commis- sioner, the Commissioner may, in accordance with the provisions of this sec- tion, correct the mistake, and for that purpose may require the production of the document.

(2) Where the Commissioner proposes to make any such correction as aforesaid he shall give notice of the proposal to the persons who appear to him to be con- cerned, and shall give them an opportunity to be heard before making the cor- rection.

(3) Where a mistake exists in the register of designs, or in any application for registration of a design or other document filed in pursuance of such an appli- cation, or in any proceedings in connection with any design, by reason of an error or an omission on the part of the proprietor of the design or of the appli- cant for registration of the design or of any other person concerned, a correc- tion may be made in accordance with the provisions of this section upon a re- quest in writing by any person interested and payment of the prescribed fee. If it appears to the Commissioner that the correction would materially alter the meaning or scope of the document to which the request relates and ought not to be made without notice to persons likely to be affected thereby, he shall require notice of the nature of the proposed correction to be advertised in the pre- scribed manner.

Reprinted as at 14 March 2018 Designs Act 1953 s 29

(4) Within the prescribed time after any such advertisement as aforesaid, any per- son interested may give notice to the Commissioner of opposition to the re- quest, and where any such notice of opposition is given the Commissioner shall give notice thereof to the person by whom the request was made, and shall give to him and to the opponent an opportunity to be heard before he decides the case.

(5) An appeal to the court shall lie from any decision of the Commissioner under this section. Compare: 1921–22 No 18 s 121; 1946 No 32 s 7; Registered Designs Act 1949 s 21 (UK)

Section 29(1): amended, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

29A Power of Commissioner to alter certain inconsistent information (1) This section applies if information in the register of designs relating to a person

is inconsistent with primary business data relating to that person in the New Zealand Business Number Register.

(2) If this section applies, the Commissioner may, in the prescribed manner (if any), alter the information in the register of designs so that it is consistent with the primary business data in the New Zealand Business Number Register.

(3) In this section, primary business data has the same meaning as in section 20(2) of the New Zealand Business Number Act 2016. Section 29A: inserted, on 13 May 2016, by section 41 of the New Zealand Business Number Act 2016 (2016 No 16).

30 Inspection of registered designs (1) Subject to the following provisions of this section and to any regulations made

in pursuance of subsection (2) of section 9, the representation or specimen of a design registered under this Act shall be open to inspection by the public on and after the day on which the certificate of registration is issued.

(2) In the case of a design registered in respect of an article of any class prescribed for the purposes of this subsection, no representation or specimen of the design filed in pursuance of the application shall, until the expiration of such period after the day on which the certificate of registration is issued as may be pre- scribed in relation to articles of that class, be open to inspection by the public except by the registered proprietor, a person authorized in writing by the regis- tered proprietor, or a person authorized by the Commissioner or by the court: provided that where the Commissioner proposes to refuse an application for the registration of any other design on the ground that it is the same as or differs only in immaterial details or in features which are variants commonly used in the trade, the applicant shall be entitled to inspect the representation or speci- men of the first mentioned design filed in pursuance of the application for registration of that design.

s 29A Designs Act 1953 Reprinted as at 14 March 2018

(3) In the case of a design registered in respect of an article of any class prescribed for the purposes of subsection (2), the representation or specimen of the design shall not, during the period prescribed as aforesaid, be inspected by any person by virtue of this section except in the presence of the Commissioner or of a member of his staff acting under him; and except in the case of an inspection authorized by the proviso to that subsection, the person making the inspection shall not be entitled to take a copy of the representation or specimen of the de- sign or any part thereof.

(4) Where an application for the registration of a design has been abandoned or re- fused, neither the application for registration nor any representation or speci- men of the design filed in pursuance thereof shall at any time be open to in- spection by the public or be published by the Commissioner.

(5) However, nothing in this section prevents the Commissioner from publishing any of the following: (a) the date of an application for the registration of a design: (b) the number of an application for the registration of a design: (c) any details of an application for the registration of a design that are re-

quired to be in the application form. Compare: 1921–22 No 18 ss 59, 120; Registered Designs Act 1949 s 22 (UK)

Section 30(1): amended, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

Section 30(2): amended, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

Section 30(4): amended, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

Section 30(5): inserted, on 19 April 2011, by section 5 of the Designs Amendment Act 2010 (2010 No 15).

31 Information as to existence of copyright On the request of any person furnishing such information as may enable the Commissioner to identify the design, and on payment of the prescribed fee, the Commissioner shall inform him whether the design is registered, and, if so, in respect of what articles, and whether any extension of the period of copyright has been granted, and shall state the date of registration and the name and ad- dress of the registered proprietor. Compare: 1921–22 No 18 s 60; Registered Designs Act 1949 s 23 (UK)

32 Evidence of entries, documents, etc (1) A certificate purporting to be signed by the Commissioner and certifying that

any entry which he is authorized by or under this Act to make has or has not been made, or that any other thing which he is so authorized to do has or has not been done, shall be prima facie evidence of the matters so certified.

Reprinted as at 14 March 2018 Designs Act 1953 s 32

(2) A copy of, or an extract from, any entry in the register of designs or of any document that is registered or otherwise kept by the Commissioner that pur- ports to be certified as a true copy or extract by the Commissioner is admissible in evidence in legal proceedings as if it were the original. Compare: 1921–22 No 18 ss 130, 131; Registered Designs Act 1949 s 24 (UK)

Section 32(2): replaced, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

Legal proceedings and appeals

33 Certificate of contested validity of registration (1) If in any proceedings before the court the validity of the registration of a design

is contested, and it is found by the court that the design is validly registered, the court may certify that the validity of the registration of the design was con- tested in those proceedings.

(2) Where any such certificate has been granted, then, if in any subsequent pro- ceedings before the court for infringement of the copyright in the registered de- sign or for cancellation of the registration of the design a final order or judg- ment is made or given in favour of the registered proprietor, he shall, unless the court otherwise directs, be entitled to his costs as between solicitor and client: provided that this subsection shall not apply to the costs of any appeal in any such proceedings as aforesaid. Compare: 1921–22 No 18 s 40; Registered Designs Act 1949 s 25 (UK)

34 Remedy for groundless threats of infringement proceedings (1) Where any person (whether entitled to or interested in a registered design or an

application for registration of a design or not) by circulars, advertisements, or otherwise threatens any other person with proceedings for infringement of the copyright in a registered design, any person aggrieved thereby may bring an action against him for any such relief as is mentioned in subsection (2).

(2) Unless in any action brought by virtue of this section the defendant proves that the acts in respect of which proceedings were threatened constitute or, if done, would constitute an infringement of the copyright in a registered design the registration of which is not shown by the plaintiff to be invalid, the plaintiff shall be entitled to the following relief, that is to say: (a) a declaration to the effect that the threats are unjustifiable; and (b) an injunction against the continuance of the threats; and (c) such damages, if any, as he has sustained thereby.

(3) For the avoidance of doubt it is hereby declared that a mere notification that a design is registered does not constitute a threat of proceedings within the mean- ing of this section. Compare: 1921–22 No 18 s 65; Registered Designs Act 1949 s 26 (UK)

s 33 Designs Act 1953 Reprinted as at 14 March 2018

35 Appeal to High Court (1) Every appeal under this Act against a decision of the Commissioner shall be to

the High Court. (2) Notice of every such appeal shall be filed in the court and served upon the

Commissioner within 28 days after the day on which the decision appealed against was given.

(3) In any such appeal the court shall have and may exercise the same discretion- ary powers as are conferred upon the Commissioner.

(4) Except with the leave of the High Court or of the Court of Appeal, no appeal shall lie from any decision of the High Court on an appeal against a decision of the Commissioner. Compare: 1921–22 No 18 s 140

Section 35 heading: amended, on 1 April 1980, pursuant to section 12 of the Judicature Amendment Act 1979 (1979 No 124).

Section 35(1): amended, on 1 April 1980, pursuant to section 12 of the Judicature Amendment Act 1979 (1979 No 124).

Section 35(4): amended, on 1 April 1980, pursuant to section 12 of the Judicature Amendment Act 1979 (1979 No 124).

Powers and duties of Commissioner

36 Exercise of discretionary powers of Commissioner Without prejudice to any provisions of this Act requiring the Commissioner to hear any party to proceedings thereunder, or to give to any such party an oppor- tunity to be heard, the Commissioner shall give to any applicant for registration of a design an opportunity to be heard before exercising adversely to the appli- cant any discretion vested in the Commissioner by or under this Act. Compare: 1921–22 No 18 s 124; Registered Designs Act 1949 s 29 (UK)

37 Commissioner may grant extension of time (1) Where by this Act anything is required to be done within a prescribed time, and

by reason of delay by the Commissioner the thing is not so done, the Commis- sioner may extend the time for the doing of the thing.

(2) No fees shall be payable in respect of any extension of time granted under this section.

(3) The powers conferred on the Commissioner by this section may be exercised notwithstanding that in any case the time limited may have expired. Compare: 1921–22 No 18 s 125

Section 37(1): amended, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

Reprinted as at 14 March 2018 Designs Act 1953 s 37

37A Additional provisions for extending time limits (1) The Commissioner may extend the time prescribed in subsection (1) of section

21 for the filing of an application under that section on such terms (if any) as he thinks fit where he is satisfied that the circumstances warrant the extension.

(2) Notwithstanding subsection (1), the Commissioner shall refuse to grant an ex- tension of time under that subsection if in his opinion— (a) the applicant or his agent has not allowed a reasonable margin of time

for the delivery of any documents relating to the matter in respect of which the application for the extension of time is made; or

(b) the applicant or his agent has in any other way failed to act with due dili- gence and prudence in respect of such matter; or

(3) Every extension of time granted under this section shall be advertised in the Journal in the prescribed manner.

(4) Where an application is made for an extension of time under this section by an agent on behalf of any applicant, the Commissioner may as a condition of granting the application require that written confirmation that the application is authorised shall be signed or executed by the applicant and lodged with the Commissioner within such time as the Commissioner specifies.

(5) Any extension of time under this section, and any requirement given or other action taken by the Commissioner under this section, may be granted, given, or taken so as to have effect in respect of things done or omitted to be done before the commencement of this section, as long as the application for the extension of time has been made before registration of the design in respect of which the application under this section has been made.

(6) The Governor-General may, from time to time, by Order in Council, make regulations for all or any of the following purposes: (a) for the protection of persons who at any time in good faith have begun to

avail themselves of any design that is the subject matter of a matter in respect of which any application under this section is made:

(b) prescribing the evidence that the Commissioner may accept in support of applications under this section:

(d) prescribing the grounds of opposition to applications under this section: (e) regulating the procedure to be followed in relation to applications under

this section and opposition to such applications: (f) prescribing the fees to be paid in respect of applications under this sec-

tion.

s 37A Designs Act 1953 Reprinted as at 14 March 2018

Section 37A: inserted, on 20 October 1972, by section 3 of the Designs Amendment Act 1972 (1972 No 53).

Section 37A(2)(a): amended, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

38 Costs and security for costs (1) The Commissioner may, in any proceedings before him under this Act, by

order award to any party such costs as he may consider reasonable, and direct how and by what parties they are to be paid; and any such order may be entered as a judgment of the court and, with the leave of the court, may be enforced accordingly.

(2) If any party by whom application is made to the Commissioner for the cancel- lation of the registration of a design or for the grant of a licence in respect of a registered design or by whom notice of appeal is given from any decision of the Commissioner under this Act, neither resides nor carries on business in New Zealand, the Commissioner, or, in the case of appeal, the court, may re- quire him to give security for the costs of the proceedings or appeal, and in de- fault of such security being given may treat the application or appeal as aban- doned. Compare: 1921–22 No 18 ss 45, 127; Registered Designs Act 1949 s 30 (UK)

39 Evidence before Commissioner (1) Subject to regulations made under this Act, the evidence to be given in any

proceedings before the Commissioner under this Act may be given by affidavit or statutory declaration; but the Commissioner may if he thinks fit in any par- ticular case take oral evidence instead of or in addition to such evidence as aforesaid, and may allow any witness to be cross-examined on his affidavit or declaration. Any such statutory declaration may, in the event of an appeal under this Act, be used before the court instead of evidence by affidavit, and where so used shall have all the incidents and consequences of evidence by af- fidavit.

(2) Subject to any such regulations as aforesaid, the Commissioner shall in respect of requiring the attendance and the examination of witnesses on oath and the discovery and production of documents have the same powers as the Commis- sioner of Patents has in proceedings under the Patents Act 2013.

(3) Any evidence given on oath before the Commissioner shall be deemed to be given in a judicial proceeding for the purposes of sections 108 and 109 of the Crimes Act 1961.

(4) Section 111 of the Crimes Act 1961 shall apply to every affidavit and statutory declaration made for the purposes of this Act. Compare: 1921–22 No 18 s 129; Registered Designs Act 1949 s 31 (UK)

Section 39(2): amended, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

Reprinted as at 14 March 2018 Designs Act 1953 s 39

Section 39(3): amended, on 1 January 1962, pursuant to section 412(2) of the Crimes Act 1961 (1961 No 43).

Section 39(4): amended, on 1 January 1962, pursuant to section 412(2) of the Crimes Act 1961 (1961 No 43).

40 Recognition of agents Where by this Act any act has to be done by or to any person in connection with a registered design or proposed registered design or any proceedings relat- ing thereto, the act may, unless otherwise prescribed, be done by or to an agent of that person duly authorized in the prescribed manner. Compare: 1921–22 No 18 s 136

41 Commissioner may dispense with production of probate or letters of administration in certain cases

(1) For the purposes of this section, unless the context otherwise requires,— deceased proprietor means a registered proprietor of any design who has died, whether before or after the commencement of this Act; and includes any appli- cant for the registration of a design who has died before it is registered, wheth- er before or after the commencement of this Act qualified person, in relation to any deceased proprietor, means a person who satisfies the Commissioner— (a) that he has obtained or is entitled to obtain probate of the will of the de-

ceased proprietor or letters of administration in his estate in the place where the deceased proprietor was domiciled at his death, or that he is the legal representative of the deceased proprietor in that place:

(b) that probate of the will of the deceased proprietor or letters of adminis- tration in his estate have not been granted or resealed in New Zealand:

persons beneficially interested under his will or on his intestacy, will be adequately safeguarded if the Commissioner of Designs registers the qualified person as the proprietor of the design.

(2) Upon application in the prescribed manner and payment of the prescribed fees, the Commissioner of Designs, in his discretion and without requiring the pro- duction of probate or letters of administration, may,— (a) where the registered proprietor of any design has died, whether before or

after the commencement of this Act, register any qualified person as the proprietor of the design:

(b) where an applicant for the registration of a design has died before the registration of the design, whether before or after the commencement of this Act, allow any qualified person to complete the application and may register that person as the proprietor of the design.

s 40 Designs Act 1953 Reprinted as at 14 March 2018

(3) Every qualified person who is registered under this section as the proprietor of a design shall hold it subject to all existing interests and equities affecting it.

(4) Nothing in section 70 or section 73 of the Administration Act 1969 shall be deemed to restrict the operation of this section. Compare: 1947 No 37 s 5

Section 41(1) qualified person paragraph (c): repealed, on 24 May 1999, by section 15(1) of the Estate Duty Repeal Act 1999 (1999 No 64).

Section 41(4): amended, on 1 January 1971, pursuant to section 84(1) of the Administration Act 1969 (1969 No 52).

Restoration of lapsed copyright in registered design Heading: inserted, on 19 April 2011, by section 6 of the Designs Amendment Act 2010 (2010 No 15).

41A Restoration of lapsed copyright in registered design (1) This section applies if the period of copyright in a registered design has ended

by reason of a failure to make an application under section 12(2) or to pay the prescribed fee under section 12(2) (or both).

(2) The Commissioner may, on a request made in the prescribed manner and in ac- cordance with sections 41B to 41F, by order extend the period of copyright in a registered design for a second or third period of 5 years as provided for in sec- tion 12(2) if the Commissioner is satisfied that the relevant failure to comply with section 12(2) was unintentional.

(3) A request for an order under this section must contain a statement that fully sets out the circumstances that led to the relevant failure to comply with section 12(2).

(4) The Commissioner may require the person who makes the request to provide any further evidence that the Commissioner thinks fit.

(5) An appeal to the court may be made from any decision of the Commissioner under this section or sections 41B to 41F. Section 41A: inserted, on 19 April 2011, by section 6 of the Designs Amendment Act 2010 (2010 No 15).

41B Persons who may make request for restoration of copyright (1) A request for an order under section 41A may be made by the person who was

the registered proprietor or, if that person is deceased, by that person’s personal representative.

(2) If there were 2 or more registered proprietors, the request for an order under section 41A may, with the leave of the Commissioner, be made by 1 or more of them without joining the others. Section 41B: inserted, on 19 April 2011, by section 6 of the Designs Amendment Act 2010 (2010 No 15).

Reprinted as at 14 March 2018 Designs Act 1953 s 41B

41C When request for restoration of copyright may be made (1) A request for an order under section 41A may only be made within the pre-

scribed period. (2) However, the Commissioner may extend the period within which a request may

be made if the Commissioner is satisfied that there was no undue delay in mak- ing the request.

(3) The person who makes the request must, for the purposes of subsection (2), provide the Commissioner with a statement that fully sets out the circum- stances that caused the delay and the reasons why the delay is not undue.

(4) The Commissioner may require that person to provide any further evidence that the Commissioner thinks fit. Section 41C: inserted, on 19 April 2011, by section 6 of the Designs Amendment Act 2010 (2010 No 15).

41D Commissioner’s consideration of whether prima facie case has been made out for restoration

(1) The Commissioner must, after considering a request made in accordance with sections 41A to 41C, give the person who made the request a reasonable oppor- tunity to be heard if the Commissioner is not satisfied that a prima facie case has been made out for an order under section 41A.

(2) The Commissioner must publish a request made in accordance with sections 41A to 41C in the Journal if the Commissioner is satisfied that a prima facie case has been made out for an order under section 41A. Section 41D: inserted, on 19 April 2011, by section 6 of the Designs Amendment Act 2010 (2010 No 15).

41E Notice of opposition and reasonable opportunity to be heard (1) Any person may, within the prescribed period, give notice to the Commissioner

of opposition to an order being made under section 41A on either or both of the following grounds: (a) that the relevant failure to comply with section 12(2) was not uninten-

tional: (b) if the period within which a request for an order under section 41A may

be made is extended under section 41C, that the delay in making the re- quest was undue.

(2) The Commissioner must notify the person who made the request if a person has given notice under subsection (1) and provide the person who made the re- quest with a copy of that notice.

(3) The Commissioner must give the person who made the request and the oppo- nent a reasonable opportunity to be heard before the Commissioner decides the case.

s 41C Designs Act 1953 Reprinted as at 14 March 2018

Section 41E: inserted, on 19 April 2011, by section 6 of the Designs Amendment Act 2010 (2010 No 15).

41F Order to be made on payment of unpaid fees (1) If the Commissioner has published a request under section 41D, he or she must

make an order under section 41A in accordance with the request after the pre- scribed period for giving notice of opposition if— (a) all unpaid prescribed fees are paid; and (b) all other prescribed additional penalties (if any) are paid; and (c) either—

(i) no notice of opposition is given within the prescribed period; or (ii) the decision of the Commissioner is in favour of the person who

made the request (in the case of a notice of opposition having been given within the prescribed period).

(2) An order for the extension of the period of copyright in a registered design— (a) may be made subject to a condition requiring the registration of any

matter if the provisions of this Act concerning entries in the register of designs have not been complied with; and

(b) must contain, or be subject to, the provisions that are prescribed for the protection or compensation of persons who availed themselves, or took definite steps by way of contract or otherwise to avail themselves, of the design between the date when the period of copyright ended and the date on which the request is published under section 41D; and

(3) If any condition of an order under this section is not complied with by the registered proprietor, the Commissioner may revoke the order and give any di- rections that are consequential on the revocation that the Commissioner thinks fit.

(4) The Commissioner must, before the Commissioner makes a decision under subsection (3), give the registered proprietor a reasonable opportunity to be heard. Section 41F: inserted, on 19 April 2011, by section 6 of the Designs Amendment Act 2010 (2010 No 15).

Restoration of design applications Heading: inserted, on 19 April 2011, by section 6 of the Designs Amendment Act 2010 (2010 No 15).

41G Request for restoration of abandoned design application (1) This section applies if an application for the registration of a design is aban-

doned under section 7(4).

Reprinted as at 14 March 2018 Designs Act 1953 s 41G

(2) The applicant may make a request to the Commissioner in the prescribed man- ner for an order to restore the application and to extend the period for comply- ing with the requirements imposed on the applicant by or under this Act to a date that is specified in the order.

(3) Every request for an order must contain a statement that fully sets out the cir- cumstances that led to the abandonment under section 7(4).

(4) The Commissioner must, after considering a request, give the person who made the request a reasonable opportunity to be heard if the Commissioner is not satisfied that the default or neglect on the part of the applicant that resulted in the application being abandoned under section 7(4) was unintentional.

(5) The Commissioner must publish the request in the Journal if the Commissioner is satisfied that the default or neglect on the part of the applicant that resulted in the application being abandoned under section 7(4) was unintentional.

(6) An appeal to the court may be made from any decision of the Commissioner under this section or sections 41H to 41J. Section 41G: inserted, on 19 April 2011, by section 6 of the Designs Amendment Act 2010 (2010 No 15).

41H When request for restoration of application may be made (1) A request under section 41G may only be made within the prescribed period. (2) However, the Commissioner may extend the period within which a request may

be made if the Commissioner is satisfied that there was no undue delay in mak- ing the request.

(3) The applicant must, for the purposes of subsection (2), provide the Commis- sioner with a statement that fully sets out the circumstances that caused the delay and the reasons why the delay is not undue.

(4) The Commissioner may require the applicant to provide any further evidence that the Commissioner thinks fit. Section 41H: inserted, on 19 April 2011, by section 6 of the Designs Amendment Act 2010 (2010 No 15).

41I Notice of opposition (1) Any person may, within the prescribed period, give notice to the Commissioner

of opposition to an order being made under section 41J on either or both of the following grounds: (a) that the default or neglect on the part of the applicant that resulted in the

application being abandoned under section 7(4) was not unintentional: (b) if the period within which a request under section 41G may be made is

extended under section 41H, that the delay in making the request was undue.

(2) The Commissioner must notify the applicant if a person has given notice under subsection (1) and provide the applicant with a copy of that notice.

s 41H Designs Act 1953 Reprinted as at 14 March 2018

(3) The Commissioner must give the applicant and the opponent a reasonable op- portunity to be heard before the Commissioner decides the case. Section 41I: inserted, on 19 April 2011, by section 6 of the Designs Amendment Act 2010 (2010 No 15).

41J Commissioner to determine matter (1) The Commissioner must, after the expiry of the prescribed period for giving

notice of opposition under section 41I,— (a) by order restore the application and extend the period for complying

with the requirements imposed on the applicant by or under this Act to a period that is specified in the order if the Commissioner is satisfied that— (i) the default or neglect on the part of the applicant that resulted in

the application being abandoned under section 7(4) was uninten- tional; and

(ii) if the period within which a request under section 41G may be made was extended under section 41H, there was no undue delay in making the request; or

(b) dismiss the request. (2) An order under this section must contain, or be subject to, the provisions that

are prescribed for the protection or compensation of persons who availed them- selves, or took definite steps by way of contract or otherwise to avail them- selves, of the design between the date when the application became abandoned and the date on which the request is published under section 41G.

(3) The Commissioner must publish in the Journal the making of an order under subsection (1) after that order is made. Section 41J: inserted, on 19 April 2011, by section 6 of the Designs Amendment Act 2010 (2010 No 15).

Offences

42 Offences in respect of designs required to be kept secret (1) Every person who fails to comply with any direction given under section 9, or

who makes or causes to be made an application for the registration of a design in contravention of that section, commits an offence and shall be liable on con- viction to imprisonment for a term not exceeding 2 years or to a fine not ex- ceeding $1,000, or to both such imprisonment and such fine.

(2) Where an offence against section 9 is committed by a body corporate, every person who at the time of the commission of the offence is a director, general manager, secretary, or other similar officer of the body corporate, or is purport- ing to act in any such capacity, shall be deemed to have committed that offence unless he proves that the offence was committed by the body corporate without his consent or connivance and that he exercised all such diligence to prevent

Reprinted as at 14 March 2018 Designs Act 1953 s 42

the commission of the offence by the body corporate as he ought to have exer- cised having regard to the nature of his functions in that capacity and to all the circumstances.

(3) Despite anything to the contrary in section 25 of the Criminal Procedure Act 2011 a charging document may be filed at any time in respect of an offence under subsection (1). Compare: Registered Designs Act 1949 s 33 (UK)

Section 42(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 42(3): replaced, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

43 Falsification of register, etc (1) Every person who makes or causes to be made a false entry in the register of

designs, or a writing falsely purporting to be a copy of an entry in that register, or produces or tenders or causes to be produced or tendered in evidence any such writing, knowing the entry or writing to be false, commits an offence and shall be liable on conviction to imprisonment for a term not exceeding 2 years.

(2) Despite anything to the contrary in section 25 of the Criminal Procedure Act 2011 a charging document may be filed at any time in respect of an offence under subsection (1). Compare: 1921–22 No 18 s 143(1); Registered Designs Act 1949 s 34 (UK)

Section 43(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Section 43(2): replaced, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

44 Fine for falsely representing a design as registered (1) Every person who falsely represents that a design applied to any article sold by

him is registered in New Zealand in respect of that article commits an offence and shall be liable on conviction to a fine not exceeding $40; and for the pur- poses of this provision a person who sells an article having stamped, engraved, or impressed thereon or otherwise applied thereto the words “registered in New Zealand” or any other words expressing or implying that the design applied to the article is registered in New Zealand shall be deemed to represent that the design applied to the article is registered in respect of that article.

(2) Every person who after the copyright in a registered design has expired, marks any article to which the design has been applied with the words “registered in New Zealand” or any word or words implying that there is subsisting copyright in the design in New Zealand or causes any such article to be so marked com- mits an offence and shall be liable on conviction to a fine not exceeding $40. Compare: 1921–22 No 18 s 143(3), (4); Registered Designs Act 1949 s 35 (UK)

Section 44(1): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

s 43 Designs Act 1953 Reprinted as at 14 March 2018

Section 44(2): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Supplemental

45 Opening hours of Intellectual Property Office of New Zealand (1) The Commissioner may—

(a) fix the opening hours for the Intellectual Property Office of New Zea- land; and

(b) declare the Intellectual Property Office of New Zealand closed on any day.

(2) The Commissioner must publicly notify those opening hours, and (before clos- ing the Intellectual Property Office of New Zealand) any closure, in accordance with section 5(3) of the Patents Act 2013.

(3) A thing that must or may be done on a particular day or within a limited period of time may, if that day or the last day of that period is not an opening day of the Intellectual Property Office of New Zealand, be done on the next opening day (and is then still in time). Section 45: replaced, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

45A Closing of Intellectual Property Office of New Zealand at short notice (1) The Commissioner may declare the Intellectual Property Office of New Zea-

land closed without giving publication of the closure under section 45 if— (a) he or she thinks it necessary or desirable because of an emergency or

other temporary circumstances; and (b) it is not practicable to make that prior publication.

(2) The Commissioner must, as soon as practicable after closing the Intellectual Property Office of New Zealand, publicly notify the closure in accordance with section 5(3) of the Patents Act 2013. Section 45A: replaced, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

46 Regulations (1) Subject to the provisions of this Act, the Governor-General may from time to

time, by Order in Council, make all such regulations as may in his opinion be necessary or expedient for giving effect to the provisions of this Act and for the due administration thereof.

(2) Without limiting the general power conferred by subsection (1), it is hereby de- clared that regulations may be made under this section for all or any of the fol- lowing purposes: (a) for regulating the business of the Intellectual Property Office of New

Zealand in relation to designs:

Reprinted as at 14 March 2018 Designs Act 1953 s 46

(b) for regulating all matters by this Act placed under the direction or con- trol of the Commissioner:

(c) for prescribing the form of applications for registration of designs and of any representations or specimens of designs or other documents which may be filed with the Commissioner, and for requiring copies to be fur- nished of any such representations, specimens, or documents:

(ca) for prescribing the manner in which applications may be made under section 12(2):

(cb) for regulating the procedure to be followed in connection with a request to the Commissioner under sections 41A to 41F (including providing for when and how requests must be made, the period for giving notice of op- position, penalties payable under section 41F, and the matters referred to in section 41F(2)(b)):

(cc) for regulating the procedure to be followed in connection with a request to the Commissioner under sections 41G to 41J (including providing for when and how requests must be made, the period for giving notice of op- position, and the matters referred to in section 41J(2)):

(d) for regulating the procedure to be followed in connection with any appli- cation or request to the Commissioner or in connection with any pro- ceeding before the Commissioner and for authorizing the rectification of irregularities of procedure:

(e) for regulating the keeping of the register of designs: (ea) for regulating the manner in which the Commissioner may alter informa-

tion in the register of designs under section 29A, including prescribing procedures, requirements, and other matters in respect of an alteration:

(f) for authorizing the publication and sale of copies of representations of designs and other documents in the Intellectual Property Office of New Zealand:

(g) for prescribing classes of persons whom the Commissioner may refuse to recognize as agents in respect of proceedings under this Act:

(h) for prescribing matters to be published in the Journal: (i) for prescribing anything authorized or required by this Act to be pre-

scribed by regulations. (3) The structure of the fee system under this Act prescribed by regulations under

this section may be such that any fees for an extension of the period of copy- right in a registered design under section 12(2)— (a) recover a share of the costs incurred by the Commissioner in performing

his or her functions under this Act; and

s 46 Designs Act 1953 Reprinted as at 14 March 2018

(b) recover those costs at a level that provides an appropriate incentive for persons to not extend that period of copyright if they do not receive suf- ficient benefit from having the copyright in the registered design.

Compare: 1921–22 No 18 s 138; Registered Designs Act 1949 s 36 (UK)

Section 46(2)(a): amended, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

Section 46(2)(c): amended, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

Section 46(2)(ca): inserted, on 20 April 2010, by section 7 of the Designs Amendment Act 2010 (2010 No 15).

Section 46(2)(cb): inserted, on 20 April 2010, by section 7 of the Designs Amendment Act 2010 (2010 No 15).

Section 46(2)(cc): inserted, on 20 April 2010, by section 7 of the Designs Amendment Act 2010 (2010 No 15).

Section 46(2)(ea): inserted, on 13 May 2016, by section 41 of the New Zealand Business Number Act 2016 (2016 No 16).

Section 46(2)(f): amended, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

Section 46(2)(h): amended, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

Section 46(3): replaced, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

47 Fees (1) There shall be paid in respect of the registration of designs and applications

therefor, and in respect of other matters relating to designs arising under this Act, such fees as may from time to time be prescribed by regulations made under this Act, and all such fees shall be paid into a Departmental Bank Ac- count.

(2) Any sum paid to the Commissioner by mistake, or any sum the payment of which is not required by the regulations made under this Act, may be refunded by the Commissioner, and all moneys so refunded shall be paid out of public money without further appropriation than this Act. Compare: 1921–22 No 18 s 117; Registered Designs Act 1949 s 40 (UK)

Section 47(1): amended (with effect on 1 July 1989), on 26 July 1989, by section 86(1) of the Public Finance Act 1989 (1989 No 44).

Section 47(2): amended (with effect on 1 July 1989), on 26 July 1989, by section 86(1) of the Public Finance Act 1989 (1989 No 44).

48 Service of notices (1) A notice, an application, or any other document may be given to, made to, or

filed with a person by— (a) sending it by post addressed to the person at the person’s usual or last

known address; or (b) emailing it to the person at an email address that is used by the person.

Reprinted as at 14 March 2018 Designs Act 1953 s 48

(2) A notice posted to a person by the Commissioner must be treated as received by the person when it would have been delivered in the ordinary course of post.

(3) In the absence of proof to the contrary, a notice emailed to a person by the Commissioner must be treated as received by the person on the second working day after the date on which it is emailed, and, in proving that the notice was emailed, it is sufficient to prove that it was properly addressed and sent to the email address. Section 48: replaced, on 16 December 2017, by section 61 of the Electronic Interactions Reform Act 2017 (2017 No 50).

49 Annual report [Repealed] Section 49: repealed, on 13 September 2014, by section 249 of the Patents Act 2013 (2013 No 68).

50 Application of Act to Tokelau This Act shall be in force in Tokelau. Section 50 heading: amended, on 9 December 1976, pursuant to section 3(8) of the Tokelau Amend- ment Act 1976 (1976 No 122).

Section 50: amended, on 9 December 1976, pursuant to section 3(8) of the Tokelau Amendment Act 1976 (1976 No 122).

51 Saving (1) Nothing in this Act shall be construed as authorizing or requiring the Commis-

sioner to register a design the use of which would, in his opinion, be contrary to law or morality.

(2) However, the Commissioner may register a design even if its use is restricted or prohibited under the Smoke-free Environments Act 1990. Compare: 1939 No 26 s 71; Registered Designs Act 1949 s 43(1) (UK)

Section 51(2): inserted, on 14 March 2018, by section 21(2) of the Smoke-free Environments (Tobac- co Standardised Packaging) Amendment Act 2016 (2016 No 43).

52 Repeals and savings (1) The enactments specified in the Schedule are hereby repealed. (2) Without limiting the provisions of the Acts Interpretation Act 1924, it is hereby

declared that the repeal of any provision by this Act shall not affect any docu- ment made or any thing whatsoever done under the provision so repealed or under any corresponding former provision, and every such document or thing, so far as it is subsisting or in force at the time of the repeal and could have been made or done under this Act, shall continue and have effect as if it had been made or done under the corresponding provision of this Act and as if that pro- vision had been in force when the document was made or the thing was done.

(3) Any design registered before the commencement of this Act shall be deemed to be registered under this Act in respect of articles of the class in which it is registered.

s 49 Designs Act 1953 Reprinted as at 14 March 2018

(4) Where, in relation to any design, the time for giving notice to the Commis- sioner under section 63 of the Patents, Designs, and Trade Marks Act 1921–22 expired before the commencement of this Act and the notice was not given, subsection (2) of section 10 of this Act shall not apply in relation to that design or any registration of that design.

(5) Any document referring to any enactment repealed by this Act shall be con- strued as referring to the corresponding enactment of this Act. Compare: Registered Designs Act 1949 s 48 (UK)

Reprinted as at 14 March 2018 Designs Act 1953 s 52

Schedule Enactments repealed

s 52(1)

Patents, Designs, and Trade Marks Act 1921–22 (1921–22 No 18) Amendment(s) incorporated in the Act(s).

Patents, Designs, and Trade Marks Amendment Act 1939 (1939 No 26) Amendment(s) incorporated in the Act(s).

Patents, Designs, and Trade Marks Amendment Act 1943 (1943 No 6) Amendment(s) incorporated in the Act(s).

Patents, Designs, and Trade Marks Amendment Act 1946 (1946 No 32) Amendment(s) incorporated in the Act(s).

Patents, Designs, and Trade Marks Amendment Act 1947 (1947 No 37) Amendment(s) incorporated in the Act(s).

Schedule Designs Act 1953 Reprinted as at 14 March 2018

Notes

1 General This is a reprint of the Designs Act 1953 that incorporates all the amendments to that Act as at the date of the last amendment to it.

2 Legal status Reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by any amendments to that enactment. Section 18 of the Legislation Act 2012 provides that this reprint, published in electronic form, has the status of an official version under section 17 of that Act. A printed version of the reprint produced directly from this official elec- tronic version also has official status.

3 Editorial and format changes Editorial and format changes to reprints are made using the powers under sec- tions 24 to 26 of the Legislation Act 2012. See also http://www.pco.parlia- ment.govt.nz/editorial-conventions/.

4 Amendments incorporated in this reprint Electronic Interactions Reform Act 2017 (2017 No 50): Part 3 subpart 5

Smoke-free Environments (Tobacco Standardised Packaging) Amendment Act 2016 (2016 No 43): section 21

New Zealand Business Number Act 2016 (2016 No 16): section 41

Patents Act 2013 (2013 No 68): section 249

Criminal Procedure Act 2011 (2011 No 81): section 413

Designs Amendment Act 2010 (2010 No 15)

Personal Property Securities Act 1999 (1999 No 126): section 191(1)

Designs Amendment Act 1999 (1999 No 120)

Estate Duty Repeal Act 1999 (1999 No 64): section 15(1)

Designs Amendment Act 1996 (1996 No 118)

Public Finance Act 1989 (1989 No 44): section 86(1)

Shop Trading Hours Amendment Act 1980 (1980 No 36): section 5(2)

Judicature Amendment Act 1979 (1979 No 124): section 12

Tokelau Amendment Act 1976 (1976 No 122): section 3(8)

Designs Amendment Act 1972 (1972 No 53)

Administration Act 1969 (1969 No 52): section 84(1)

Crimes Act 1961 (1961 No 43): section 412(2)

Designs Act Commencement Order 1954 (SR 1954/225)

Wellington, New Zealand:

Published under the authority of the New Zealand Government—2018

Reprinted as at 14 March 2018 Designs Act 1953 Notes

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