- Part 1 - Formalities
- 1. Classification
- 2. Entitlement
- 3. Applicant Name
- 4. Applicant Address
- 5. Address for Service
- 6. (reserved)
- 7. Product Name
- 8. Section 43
- 9. Statement of Newness and Distinctiveness
- 10. Convention Details
- 11. Excluded Design Details
- 12. Registration / Publication Request
- 13. Designer Name
- 14. Representations
- 15. Further Designs
- 16. Amendments
- 17. Formalities Checking Procedure
- Part 2 - Examination
- D01 Citation Index
- D02 (reserved)
- D03 Examination Process
- D03.1 Overview
- D03.2 Requesting examination - requirements
- D03.3 Who may request examination?
- D03.4 Which Designs may be examined?
- D03.5 Court proceedings
- D03.6 Handling concurrent requests for examination
- D03.7 Handling requests for examination when a Certificate of Examination has previously issued
- D03.8 Further reports
- D03.9 Being 'satisfied'
- D03.10 Period for completion of examination
- D03.11 Withdrawal of request for examination
- D03.12 Interface with Court Proceedings
- D03.13 Intention to Certify
- D03.14 Material provided by a 3rd party
- D03.15 3rd Party Initiated Examinations
- D03.16 Revocation during Examination
- D03.17 Expedited Examination
- D04 Identifying the Design
- D04.1 Introduction
- D04.2 Design in relation to a product
- D04.3 What is a product?
- D04.4 Overall appearance, and visual features
- D04.5 Interpretation of representations
- D04.6 Role of a Statement of Newness and Distinctiveness
- D05 Designs which must not be registered
- D05 Designs which must not be registered - s.43, Reg 4.06
- D05.1 s.18 of the Olympic Insignia Protection Act 1987 s.43(1)(b)
- D05.2 Integrated circuits [s.43(1)(c)]
- D05.3 Medals [reg 4.06(a)]
- D05.4 Protection of Word 'Anzac' Regulations
- D05.5 Paper money, securities [reg 4.05(c)]
- D05.6 Scandalous designs
- D05.7 Arms, flag or seal of Australia, state, territory, city or town, public authority or institution, or another country [reg 4.06 (e), (f) and (g)]
- D06 Priority Dates
- D06.1 Background, general issues
- D06.2 Priority date - Convention Applications
- D06.3 Priority date - Excluded Designs
- D06.4 Priority date - Applications by an entitled person (s.52, 53 or 54)
- D06.5 Priority date - Converted Applications
- D07 Prior Art Base
- D07.1 General Information/Background
- D07.2 Publicly used in Australia
- D07.3 Published in a document within or outside Australia
- D07.4 Designs disclosed in applications
- D07.5 Exhibitions, Unauthorised disclosures
- D07.6 Copyright overlap - s.19
- Appendix - Examiner's Worksheet
- D08 Searching
- D09 Assessing Newness and Distinctiveness
- D10 Amendments
- D10.1 Overview
- D10.2 Ambit of s 28 amendments
- D10.3 Ambit of s.66 amendments
- D10.4 Allowabililty - inclusion of matter not in substance disclosed
- D10.5 Allowability - increasing scope of the Design Registration
- D10.6 Amendments of Statement of Newness and Distinctiveness
- D11 Extension of Time - s.137
- D11.1 Introduction
- D11.2 s.137(1) - Error or Omission by the Registrar
- D11.3 s.137(2) - Summary of the Principles of Law
- D11.4 Making the Application - s.137(2)
- D11.5 Registrar's Discretion - s.137(2)
- D11.6 Advertisement of Extension - Subsection 137(4)
- D11.7 Period of Extension to be Granted
- D11.8 Common Deficiencies
- D11.9 Protection and Compensation Arrangements
- D12 Assignment etc of Designs, the Registrar
- D12.1 Introduction
- D12.2 Registering Assignments
- D12.3 Registering other interests
- D12.4 Correction of the Register - Regulation 9.05
- D12.5 Rectification of the Register by a court
- D12.6 Trusts, Bankruptcy, Insolvency
- D13 Ownership Disputes
- D13.1 Overview of ownership disputes
- D13.2 S.29 disputes
- D13.3 S.30 Disputes associated with recording assignments
- D13.4 S.52 Revocation relating to Entitled Persons
- D13.5 Application by Entitled persons after revocation
- D14 Publication, File access
- D14.1 Background, general issues
- D14.2 Documents not publicly available
- D14.3 Interaction with the Freedom of Information Act 1982
- D14.4 Production of documents under s.61(2)
- D14.5 Right of Lien
- D15 Surrender of a Design
- D15.1 Overview
- D15.2 Processing an offer to surrender
- D15.3 Discretionary considerations in Accepting the Offer
- D15.4 Surrender by consent - and ownership matters
- D16 Prohibition Orders
- Part 3 - Classification
- Amendments to the Eleventh Edition of the Locarno Classification
- Amendments to the Tenth Edition of the Locarno Classification
- Class Heading Summary
- Class 01 - Foodstuffs
- Class 02 - Articles of clothing and haberdashery
- Class 03 - Travel goods, cases, parasols and personal belongings not elsewhere specified
- Class 04 - Brushware
- Class 05 - Textile piecegoods, artificial and natural sheet material
- Class 06 - Furnishings
- Class 07 - Household goods not elsewhere specified
- Class 08 - Tools and hardware
- Class 09 - Packages and containers for the transport or handling of goods
- Class 10 - Clocks and watches and other measuring instruments, checking and signalling instruments
- Class 11 - Articles of adornment
- Class 12 - Means of transport or hoisting
- Class 13 - Equipment for production, distribution or transformation of electricity
- Class 14 - Recording, communication or information retrieval equipment
- Class 15 - Machines not elsewhere specified
- Class 16 - Photographic, cameras, cinematographic and optical apparatus
- Class 17 - Musical instruments
- Class 18 - Printing and office machinery
- Class 19 - Stationery and office equipment, artists and teaching materials
- Class 20 - Sales and advertising equipment, signs
- Class 21 - Games, toys, tents and sports goods
- Class 22 - Arms, pyrotechnic articles, articles for hunting, fishing and pest killing
- Class 23 - Fluid distribution equipment, sanitary, heating, ventilation and air-conditioning equipment, solid fuel
- Class 24 - Medical and laboratory equipment
- Class 25 - Building units and construction elements
- Class 26 - Lighting apparatus
- Class 27 - Tobacco and smokers supplies
- Class 28 - Pharmaceutical and cosmetic products, toilet articles and apparatus
- Class 29 - Devices and equipment against fire hazards, for accident prevention and for rescues
- Class 30 - Articles for the care and handling of animals
- Class 31 - Machines and appliances for preparing food or drink, not elsewhere specified
- Class 32 - Graphic symbols and logos, surface patterns, ornamentation
Chapter 14. Representations
Representations assist the applicant, public, the Registrar and interested parties to understand the visual features of a design.
According to s 5 of the Designs Act 2003 (Cth) (Act), “representation” means:
'a drawing, tracing or specimen of a product embodying a design or a photograph of such a drawing, tracing or specimen.'
Representations included as part of a design application must comply substantially with the formal requirements set out in Schedule 2 of the Designs Regulations 2004 (Cth). The following outlines general considerations, including requirements and common issues seen when assessing the suitability of representations.
The representations must show a product. They cannot simply show, for example, the two dimensional design for a logo, which may be applicable to a box without showing the box to which the logo is applied. An actual physical item must always be shown. Also, the representations cannot show part of a product that has no separate existence e.g. the bowl of a spoon without the handle.
An example of an acceptable filing for a box is seen below, contrasted with a filing for solely a logo, which is not acceptable:
The representations must show the product that is named in the application. If they show something different, a formalities notice should be raised (see Part 1, Chapter 7 regarding 'product name').
Where an application claims that a design has indefinite dimensions in a manner that is not permitted by s 6(3), it is unable to meet the definition of a product.
If the application is for one design applied to many products (a common design), the representations must show each product named in the application.
(a) Separate representations
If more than one representation appears on a single page, they should not overlap, as this obscures the detail of the design.
Any text that is included on representation sheets must only be information necessary to understand the representations. This is restricted to titles for the representations (labelling) and in limited circumstances other descriptive text which is essential for the understanding of the representation and what it is attempting to show in terms of a product embodying a design.
The following side view on the left is acceptable. On the right side is an example of unnecessary text in a representation, being the name of a company and an indication of height.
Descriptive text that is embedded in representations which serves to give weight to features or identify their importance must not be included and will be queried by the formalities officer. Information which serves to guide or specify what features are considered to be new and distinctive should instead be included as part of a Statement of Newness and Distinctiveness (SoND).
(c) Applications containing more than one design
(d) Common designs
For applications containing more than one design, each design should be separately and clearly indicated. Also, a single sheet cannot be used to show more than one design.
Where there is no image showing the physical connection between visually separate elements of the product bearing the design, pictured in representations, the formalities officer will raise the issue of there being more than one design. Regarding further designs issues, please see Part 1, Chapter 15.
When an application is for a single design applied to more than one product, it is a requirement that the representations show the design in relation to each product identified in the application. This will require a separate sheet for each product. It is a requirement that each product name is reconciled with the corresponding representation. For more information see, Part 1, Chapter 15 and Part 1, Chapter 7.
An example of an acceptable filing for a common design is seen below:
Product name: T-shirt; Mug; Bag
(e) Extraneous matter
Representations should show only the design or designs that are being applied for. If other items are included this may result in confusion about what is the design being applied for and how many designs are shown. The inclusion of extraneous matter can also obscure the appearance of the design applied to the product, resulting in uncertainty as to what are the visual features of the design. Any photographs must show the product against a neutral and clear background.
The example below shows both an acceptable representation for a guitar with a neutral background and an unacceptable representation with extraneous matter, including other musical items.
Product name: Guitar
(f) Open, closed, and other configuration changes
Changes in the configuration of the design are acceptable. For example, a laptop computer which is pictured in ‘closed’ and ‘open’ positions would be regarded as showing the same design, as long as all visual features otherwise remain the same.
Whilst configuration changes are acceptable, the representations must also show the components applied together, as part of a single design applied to a product.
The following is an example of an appropriately labelled set of representations for a design which includes different configurations:
Product Name: Laptop Computer
(g) Consistency of representations
One format for representations should be used (photographs, line drawings or computer aided design (CAD)). Combining line drawings and other filing formats such as photographs or CAD representations, as part of showing a single design filing, almost always shows inconsistency in representations. Where there is inconsistency a formalities notice will be issued. Any deviation from the approach of filing in one format must have clear apparent reasons.
For example, a plain line drawing includes a monochromatic colour whereas a colour photograph may show a variety of colours applied to the product bearing the design as visual features. A plain line drawing is not considered to be limited by a colour or colours, nor does it depict a variety of colours as visual features. On this basis the different filing formats do not show the same design.
Also, if visual features are shown in solid lines in one drawing and dotted lines in other drawings, the representations would be considered to show different designs.
Below is an example of a set of acceptable representations with a single format (line drawing):
Product Name: Chair
The following is an example of a set of representations with various file formats (photograph and drawings) which is not considered to be acceptable:
Product Name: Chair
Applications that consist of both line drawings and drawing with greyscale may be considered acceptable if it is clear that the greyscale is used to indicate shading and not colour as a visual feature.
Using a single format minimises the risk that the representations show inconsistency and further designs. The slightest difference between representations will likely raise issues of further designs.
Please also see Part 1, Chapter 15 which discusses further designs in more detail. Often both the issues of inconsistency and further designs will be raised in combination by a formalities officer.
(h) Exploded Views
An exploded view may be included if it is necessary to illustrate the appearance of parts that could otherwise not be clearly illustrated, or if components of the product being illustrated can be separated in normal use e.g. a bottle with cap. If a view is an exploded view, indication of this should be in the labelling.
The following is an example of an exploded view properly labelled:
Product Name: Bottle
Photographic representations may sometimes give the impression of showing more than one design. This may be caused by lighting or by the angle from which the photograph is taken. As a general rule if the visual features appear to be the same and minor colour variations could be attributed to such environmental factors such as lighting, a formalities notice should not be raised.
Photos should be taken against a plain and contrasting background. The design is then more likely to be clearly defined. Strong shadows are likely to confuse important detail of the design.
(b) Consistency of views
Drawings of a design should be illustrative. They should show the whole, assembled product providing a clear indication that any parts or components also represented form together as part of a single design applied to a product.
An example of representations showing all components physically connected in at least one view is seen below at 14.5(d) with the first ‘assembled bottle’.
All views should be checked to see that they show the product design consistently and that nothing additional is shown in one drawing that is not indicated in another. Inconsistencies may indicate further designs.
For example, the set of design representations, all filed in one application shown below has inconsistencies throughout in terms of colour:
Product name: Shoe
(d) Exploded Views
Shading is commonly used to indicate curved surfaces and can be acceptable. However, excessively dark colouring or shading are likely to confuse important detail of the design and should be avoided.
An exploded view may be included if it is necessary to illustrate the appearance of parts that could otherwise not be clearly illustrated, or if components of the product being illustrated can be separated in normal use e.g. a bottle with cap. If a view is an exploded view, clear indication of this should be in the labelling.
The following (Design 201410741) is an example, specifically in the context of a drawing, of an ‘exploded’ view properly labelled. The representations show the design in at least one view fully assembled view in the Front view and then the Further ‘exploded’ view.
Product Name: Bottle
Representations should be shown in proper proportion to each other. Close-ups of parts of the product are permissible so long as they are consistent with other drawings. If a view is a close-up, indication of this should be in the labelling.
The following is an example of a set of representations with a close-up view properly labelled and a view of the whole product.
Product Name: Replaceable electric toothbrush head
The second and unacceptable example below does not contain labelling and by itself does not have one representation of the whole product:
Product Name: Replaceable electric toothbrush head
Representations: (Close-up view by itself)
(f) Sketchy views
Linework used in the drawings should be executed in dark and well-defined lines. Inconsistent, faint or otherwise sketchy lines are unacceptable.
Below are examples of representations having linework that is not well-defined and is sketchy:
(g) Section Views
Section views may be included as a way of showing the profile of the product e.g. internal features of a bottle cap where normal views would not adequately show this. They should be indicated by oblique hatching. If a view is a section-view, indication of this should be in the labelling.
The following is an example of a section view properly labelled (Design 201510788):
Product Name: A Cooking Vessel
14.6 Environmental Views
The applicant may choose to include an ‘environmental’ view or ‘reference’ view as part of the representations. Where one of these views is included in an application, the set of representations should also contain at least one complete representation of the whole design, which shows the design in isolation from any environmental or reference inclusions.
These types of representations are included for illustrative purposes only and do not form part of the design being applied for.
Additional subject matter may be included for the clear purpose of showing the product bearing the design in the context of its surroundings or environment. This representation may show the design ‘in use’, which in turn may provide a better understanding as to the purpose of the product bearing the design or its place of use. Dotted lines are commonly used to identify environmental subject matter in drawings, in a clearly labelled ‘environmental’ view.
The representations may include a reference to what the product bearing the design will look like in reality, as part of providing further context to what a line drawing or drawings show.
When using ‘environmental’ or ‘reference’ views, clarity about what constitutes the design is essential.
Where an ‘environmental’ or ‘reference’ view is included, a clear and appropriate label should also accompany the representation identifying its purpose. If such a representation is included and is not clearly labelled, resulting in ambiguity as to its purpose and the scope of the design for which the an applicant has sought, the representation will likely be interpreted as showing further designs and a formalities notice will be issued. Unclear labelling may also result in incorrect classification, based on a misunderstanding of the scope of the design being applied for. If labelled as an ‘environmental’ view or ‘reference’ view, the representation must actually be a view showing the design in its environmental or referential context.
Examples of acceptably labelled environmental views, included as part of representations, are shown below.
Example 1 (Design 201510986):
Product Name: Underwater camera housing
Example 2 (Design 201817145):
Product Name: Lateral C-Arm Drape
Product name: Bottle scarf decoration
It must be clear what are the visual features of the design, the features included for environmental / reference context and what is the product to which the design has been applied to.
- The Statement of Newness and Distinctiveness (SoND) should not be taken into account in determining whether an environmental view has been clearly labelled. See Part 2, D04.6 for the purpose and use of a SoND. The SoND is not a replacement for clear labelling within the representations.
- The product name can be taken into account when determining whether material within representations forms part of the design being applied for.
Only one ‘environmental’ or ‘reference’ view may be included, to serve the purpose of providing context. This is because multiple environmental or reference views are highly likely to cast doubt as to visual features being included for context only, and instead may be considered additional embodiments of the design.
Drawings and photographs are the preferred method of illustrating a design. Specimens of two dimensional products may be acceptable as long as they can be photographed to a standard where all the visual features of the design are clear. If the specimen does not reproduce well, it should be accompanied or replaced by more suitable drawings or photos.
Representations may be amended under s 28 by deletion of one or more existing representations by total substitution of the representations or by augmentation of the existing representations. The new representation must not alter the scope of the application by the inclusion of matter that was not in substance disclosed in the original application. Refer to s 28(3).