D10.6 Amendments of Statement of Newness and Distinctiveness

Date Published

The question of whether a Statement of Newness and Distinctiveness (SoND) can be amended was considered in Reckitt Benckiser Inc [2008] ADO 1. The situation may be summarised as follows:

  • Prior to registration, the SoND can be amended using s 28 of the Designs Act 2003 (Cth) – see para D10.2.2.
  • After registration, no amendment is possible. Section 66 is not available, as this section is limited to requests to amend the Register, and the actual wording of the SoND is not included on the Register. See s.111 and reg 9.01(d), noting that the Register only includes the fact that a SoND was included in the application, and not the actual statement content of the SoND.
  • Furthermore, s.19 introduces the SoND as being a statement included in the design application and is understood to be the statement as it existed at the time of registration. It follows that any purported amendment after registration would create text that would not meet this criteria because it would result in a statement that was not the SoND as at the time of registration.​​​​​​​