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This Act may be cited as the Designs Act 2003.
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.
Commencement information | ||
|---|---|---|
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 and 2 and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent | 17 December 2003 |
2. Sections 3 to 161 | A single day to be fixed by Proclamation, subject to subsection (3) | 17 June 2004 |
This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.
If a provision covered by item 2 of the table does not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
This Act binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.
Nothing in this Act makes the Crown liable to be prosecuted for an offence.
This Act extends to:
each external Territory; and
the continental shelf; and
the waters above the continental shelf; and
the airspace above Australia, each external Territory and the continental shelf.
In this Act, unless the contrary intention appears:
Agency has the same meaning as in the Public Service Act 1999.
artistic work has the same meaning as in the Copyright Act 1968.
Australia includes each external Territory.
authority, in relation to the Commonwealth, a State or a Territory, means a body established for a public purpose by or under a law of the Commonwealth, State or Territory.
certificate of examination means a certificate of examination of a registered design issued under Chapter 5.
Commonwealth includes a Commonwealth authority.
complex product means a product comprising at least 2 replaceable component parts permitting disassembly and re‑assembly of the product.
continental shelf means the continental shelf of Australia as defined in the Seas and Submerged Lands Act 1973.
Convention country has the meaning given by section 5A.
corresponding design, in relation to an artistic work, has the same meaning as in Division 8 of Part III of the Copyright Act 1968.
Deputy Registrar means a Deputy Registrar appointed under section 123.
design, in relation to a product, means the overall appearance of the product resulting from one or more visual features of the product.
See also section 8.
design application means an application filed under section 21.
Designs Office means the Designs Office established by section 125.
employee means a person, other than the Registrar or a Deputy Registrar, who:
is a person engaged under the Public Service Act 1999 and is employed in the Designs Office; or
is not such a person but performs services, in the Designs Office, for or on behalf of the Commonwealth.
entitled person, in relation to a design, means a person entitled under section 13 to be entered in the Register as the registered owner of the design.
examination, in relation to a design, means examination of the design under section 65.
exclusive licensee has the meaning given by section 5B.
Federal Court means the Federal Court of Australia.
file means file with the Designs Office.
Section 144 deals with filing.
filing date has the meaning given by section 26.
head, in relation to the Designs Office of a Convention country, means the official chief (however described) of that Office.
infringement proceedings means an action or proceedings for the infringement of a registered design.
initial application has the meaning given by section 23.
legal personal representative, in relation to a deceased person, means a person to whom:
probate of the will of the deceased person; or
letters of administration of the estate of the deceased person; or
other like grant;
has been granted, whether in Australia or elsewhere.
legal practitioner means a barrister or solicitor of the High Court of Australia or of the Supreme Court of a State or Territory.
Locarno Agreement means the Agreement establishing an International Classification for Industrial Design, signed at Locarno on 8 October 1968.
minimum filing requirements has the meaning given by section 21.
PPSA security interest (short for Personal Property Securities Act security interest) means a security interest within the meaning of the Personal Property Securities Act 2009 and to which that Act applies, other than a transitional security interest within the meaning of that Act.
The Personal Property Securities Act 2009 applies to certain security interests in personal property. See the following provisions of that Act:
section 8 (interests to which the Act does not apply);
section 12 (meaning of security interest);
Chapter 9 (transitional provisions).
For the meaning of transitional security interest, see section 308 of the Personal Property Securities Act 2009.
preferred means:
in relation to filing a document with the Designs Office—means the means specified under subsection 144A(4); or
in relation to paying a fee—means the means specified under subsection 130A(4).
prescribed court means the following:
the Federal Court of Australia;
the Federal Circuit and Family Court of Australia (Division 2);
the Supreme Court of a State;
the Supreme Court of the Australian Capital Territory;
the Supreme Court of the Northern Territory;
the Supreme Court of Norfolk Island.
prior art base has the meaning given by section 15.
priority date, in relation to a design, means the priority date of the design under section 27.
product has the meaning given by section 6.
Register means the Register of Designs mentioned in section 111.
registered means registered under this Act.
registered design, at a particular time, means a design that is registered at that time.
registered owner has the meaning given by section 14.
registered patent attorney has the same meaning as in the Patents Act 1990.
registered trade marks attorney has the same meaning as in the Trade Marks Act 1995.
registrable design has the meaning given by section 15.
Registrar means the Registrar of Designs holding office under this Act.
relevant authority means:
in relation to the use of a design by or for the Commonwealth—the Commonwealth; or
in relation to the use of a design by or for a State—that State; or
in relation to the use of a design by or for a Territory—that Territory.
relevant Minister has the meaning given by subsection 96(5).
relevant parties, in relation to the examination of a design under Chapter 5, means:
the registered owner of the design; and
the person who requested the examination; and
each person who is entered on the Register as having an interest in the design.
relevant proceedings, in relation to a registered design, means court proceedings:
for infringement of the registered design; or
for revocation of the registration of the design; or
in which the validity of the registration of the design is in dispute.
representation means a drawing, tracing or specimen of a product embodying a design or a photograph of such a drawing, tracing or specimen.
services of a relevant authority has a meaning affected by subsection 95(5).
State includes a State authority.
term of registration has the meaning given by section 46.
Territory includes a Territory authority.
used for Crown purposes has the meaning given by subsection 95(2).
visual feature has the meaning given by section 7.
In this Act:
Convention country means a foreign country or region of a kind prescribed by the regulations.
Despite subsection 14(2) of the Legislation Act 2003, regulations made for the purposes of this section may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or other writing as in force or existing from time to time.
For the purposes of this Act, an exclusive licensee is a licensee under a licence granted by the registered owner of a registered design that confers on the licensee, or on the licensee and persons authorised by the licensee, the exclusive rights in the design mentioned in paragraphs 10(1)(a) to (e) to the exclusion of the registered owner and all other persons.
Subsection (1) applies whether or not the licence also confers on the licensee the exclusive right in the design mentioned in paragraph 10(1)(f) to the exclusion of the registered owner and all other persons.
For the purposes of this Act, a thing that is manufactured or hand made is a product (but see subsections (2), (3) and (4)).
A component part of a complex product may be a product for the purposes of this Act, if it is made separately from the product.
A thing that has one or more indefinite dimensions is only a product for the purposes of this Act if any one or more of the following applies to the thing:
a cross‑section taken across any indefinite dimension is fixed or varies according to a regular pattern;
all the dimensions remain in proportion;
the cross‑sectional shape remains the same throughout, whether or not the dimensions of that shape vary according to a ratio or series of ratios;
it has a pattern or ornamentation that repeats itself.
A kit which, when assembled, is a particular product is taken to be that product.
In this Act:
visual feature, in relation to a product, includes the shape, configuration, pattern and ornamentation of the product.
A visual feature may, but need not, serve a functional purpose.
The following are not visual features of a product:
the feel of the product;
the materials used in the product;
in the case of a product that has one or more indefinite dimensions:
the indefinite dimension; and
if the product also has a pattern that repeats itself—more than one repeat of the pattern.
In this Act, a reference to a design is a reference to a design in relation to a product.
The following is a simplified outline of this Chapter:
This Chapter sets out matters relating to design rights.
Part 2 specifies the exclusive rights of the registered owners of a registered design.
Part 3 specifies:
who is entitled to be registered as the owner of an unregistered design; and
who is the registered owner of a registered design.
Part 4 defines the key concepts of registrable design, newness, distinctiveness and substantial similarity. These concepts are important because:
in examining a design under Chapter 5, the Registrar must decide whether it is new and distinctive when compared to the prior art base; and
in deciding whether a person has infringed a registered design under Chapter 6, a court must consider whether the allegedly infringing design is substantially similar in overall impression to the registered design.
The registered owner of a registered design has the exclusive right, during the term of registration of the design:
to make or offer to make a product, in relation to which the design is registered, which embodies the design; and
to import such a product into Australia for sale, or for use for the purposes of any trade or business; and
to sell, hire or otherwise dispose of, or offer to sell, hire or otherwise dispose of, such a product; and
to use such a product in any way for the purposes of any trade or business; and
to keep such a product for the purpose of doing any of the things mentioned in paragraph (c) or (d); and
to authorise another person to do any of the things mentioned in paragraph (a), (b), (c), (d) or (e).
The exclusive rights mentioned in subsection (1) are personal property and are capable of assignment and of devolution by will or by operation of law.
This section is subject to this Act.