D05 Designs which must not be registered - s.43, Reg 4.06

Date Published

Pursuant to s 34 of the Designs Act 2003 (Cth) and reg 4.06 of the Designs Regulations, the Registrar must refuse to register certain designs. Under regulation 5.02, if such a design that has been registered it is subject to revocation during examination.

Date for assessing compliance with s.43

Section 43 is considered as part of the formality check, and in examination under s 65. It is not a ground of revocation available to a court. By the terms of s 43, the relevant date for assessing compliance with s 43 is the date of registration of the design – not the priority date of the design. As a result, in principle it would be possible for circumstances under s 43 (especially certain circumstances referred to in reg 4.06) to arise after the design was filed, but before registration – thereby precluding registration. On the other hand, circumstances arising after registration has occurred are outside of s 43 considerations.