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)]

Date Published

A design that is an existing symbol of a State, Territory, city, town, public authority or public institution in Australia, and any such signs of another country, is not registrable.

A ‘public authority’ is any authority or body constituted by or under a law of the Commonwealth, State or Territory. A 'public institution’ means an institution to which the public are granted access and is run for the public to use.

It should be noted that this exclusion relates to the whole symbol (or, presumably, anything which appears to be the whole symbol), and not to component elements of the symbol. For example, although the kangaroo and emu are featured in the Commonwealth Arms there are no restrictions on using kangaroos or emus in other designs.

In situations where the design involves several visual features, and one of those visual features is a symbol of State (etc), the ground of revocation does not necessarily apply. The question is whether the design as a whole including all visual features, can be said to be a symbol of State; see sections 5 and 8 of the Act.

Regulation 4.06(e), (f) and (g) list classes of designs which are, the flags, Arms, emblems etc., rather than designs that may contain these symbols as features amongst other visual features. As a result, the ground of revocation arises if the design as-a-whole, can be said to be the relevant symbol.  For example, the overall appearance of the product being an accurate depiction of the Australian flag. This approach can be contrasted with that taken previously under the 1906 Act. This arose as a result of reg 62(2) of the National Security (Supplementary Regulations) [made under the Defence (Transitional Provisions) Act 1946], where the Registrar of Designs could refuse to register any design which consisted of, embodied or contained any representation of (flags, Arms, emblems etc.). For example, a design applied to any product including amongst other visual features, an accurate representation of an Australian flag.