Chapter 2. Entitlement

Date Published

2.1  The Statement of Entitlement

The approved Design Application form includes this statement. When the form is completed by the applicant/s, they have made a statement that they are entitled to be the registered owner of the design.

Design application forms lodged by a legal representative or agent acting on behalf of the applicant should include a statement that the applicant is entitled to be entered on the register as the registered owner of the design.


2.2  Who is entitled to be the registered owner of the design?

There are five ways in which an applicant can be entitled to be the registered owner of a design. They are referred to under s13 of the Designs Act. Briefly, the five ways are:

a. the designer of the design is the owner

b. the design was created under a contract between the designer and the owner

c. the designer made the design whilst employed by the owner

d. by way of assignment, devolution by will or by operation of law from the designer to the owner

e. the legal personal representative of a deceased person mentioned above.

Further detail and explanation of the above five is given below.


2.3  The designer of the design is the owner

This is the basic rule. Unless otherwise stated, the designer of the design is the owner.


2.4  Contractual agreements

If a person or his/her employee creates a design for another person under an agreement, the other person is entitled to apply.


2.5  Employee

When a person makes a design in the course of his/her employment with an employer, his/her employer is the owner of the design, unless there is an agreement to the contrary.


2.6  Assignment

This is the case where the designer or owner of the design can assign (sell) all or part of their interest in the design. This assignment has to be in writing and signed by both the assignor and the assignee, or on their behalf.


2.7  No Statement of Entitlement on the application form


2.7.1 Case 1

If the name of the applicant is exactly the same as the name of the designer, then no statement of entitlement is required.

For this to work, all of the applicants must be the designers. The names must also match exactly. For example, if the applicant is listed as John D. Smith, but the designer is listed as John Doe Smith and there is no statement of entitlement, entitlement should be questioned in a deficiency notice.

If there is more than one designer, then all the designers must be the applicants. The names must match exactly.

If the name of the applicant/s is not exactly the same as the designer/s, a request for a statement of entitlement should be made in the deficiency notice.


2.7.2 Case 2

If a separate statement of entitlement is lodged, this statement should clearly show that the applicant is the owner of the design and is therefore entitled to be entered on the register as the registered owner of the design. This statement should be signed and dated by the person making the statement.

If the statement does not clearly show entitlement, a request for a statement of entitlement should be made in the deficiency notice.


2.7.3 Case 3

If entitlement may be gleaned from the documents lodged in relation to the application (such as covering letters or information contained in the representations), it may not be necessary to require a formal statement of entitlement.

As is always the case, if entitlement is not clear, a request for a statement of entitlement should be made in the deficiency notice.