Chapter 3. Applicant Name

Date Published

3.1  Introduction

Section 21 of the Act states that a design application must specify the person or persons that are entitled to be entered on the register as owners of the design.  These persons are referred to as applicants by IP Australia..

Normally the designer of the design is entitled to be the owner.  Chapter 2 explains how a different person or persons may become entitled to be the owner(s) of an unregistered design.

The terms “person” or “persons” used throughout the Act must be read in the light of the Acts Interpretation Act 1901.


3.2  Who is a Person

The term “person” is defined in the Acts Interpretation Act as including “a body politic or corporate as well as an individual”.

A body politic may be:

  • a nation or a state, e.g. the Commonwealth of Australia, the State of New South Wales
  • a Minister of the Crown, as distinct from the individual who, for the time being, is holding the portfolio

Examples of a body corporate are:

  • companies incorporated under the companies codes of the Australian States
  • Australian and overseas universities


3.3  Bodies Corporate

The following types of companies are recognized as bodies corporate:

Australia:

Limited (Ltd)

Proprietary Limited (Pty Ltd)

and other countries with similar company laws

Abbreviations of types of companies recognised as bodies corporate.


3.4  Not a Person

Business Names and Firms do not fall within the definition of “person” or “legal person”. In this case, a deficiency notice should be raised. The notice should direct the applicant to request that the application be amended to show all of the principals (owners or partners) of the business or firm, if not already listed.


3.5  Trusts

Under Section 117 of the 2003 Act, no notice of a trust, whether express, implied or constructive may be entered on the Register.

Express: clearly indicated as such

Implied: indicated or suggested to

Constructive: relating to, or having some legal effect

Where the name of an applicant appears to be the name of a trust, this should be queried. The trust’s name as an applicant should be replaced by the name of the trustee. A trust imposes a personable equitable obligation on the trustee to deal with the property for the benefit of the beneficiaries or for the advancement of certain purposes (e.g. a charity). Because a trust is a relationship, it is a legal and factual impossibility for a trust to be an applicant or registered owner of a design.

Note: Despite the above, a trust that has been incorporated may be entered on the register as the owner.

The following may not be entered on the Register as the owner:

  • XXX Family Trust;

  • Julie XXX, trustee for XXX Family Trust.

The following may be entered on the Register as the owner:

  • XXX Family Trust Pty Ltd;

  • Julie XXX.


3.6  Unclear if Applicant is a Person

If it is not clear that the applicant is a “person” or “legal person” within the meaning of these terms as defined above, then a deficiency notice should be raised. This notice should query the status of the applicant.

Where an applicant is applying as an individual, the full name of the applicant is required. A family name and a given name will be sufficient but a family name with only an initial will not. A business name or trading style is not acceptable as the name of an individual since neither of these entities have a legal personality.


3.7  "Trading As"

Some applicant names are referred to as “A” trading as “B”. This is satisfactory as long as “A” meets the requirements of a person as referred to above. There is no requirement for “B” to meet the requirements of a person.


3.8  Multiple Design Applications - Consistent Applicants

An application may only have the one applicant or set of applicants. This type of inconsistency is more likely to occur between different designs in multiple design applications.

Where the applicants differ in any way between different designs in a multiple design application, a deficiency notice should be raised.


3.9  Change of Name of Applicant

The applicant name may be amended by correction or assignment. In the case of applications containing more than one design, the applicant name must be amended for every design in the application. See Chapter 16 for more details.