8.1. Examination and certification: overview

Related legislation: Designs Act: ss 15, 48, 63, 64, 65, 66, 67, 68, 69; Designs Regulations: reg 3.06

Key related topics: Satisfied, Standard of the familiar person / informed user, Assessing newness and distinctiveness, Representations

A certificate of examination (certification) gives a design owner the right to enforce their design right and prevent others from using, selling or importing their design. There is no obligation to have a design certified – the process is optional.

For a design to be certified, it must first be examined to ensure it meets requirements for certification. A design can be examined any time after a design has been registered.

Any person, including a third party, can request that a design be examined – the request does not have to come from the owner of the design.

During examination, the examiner will:

• assess whether the design is a registrable design (new and distinctive) by conducting a search of the prior art base for the design as it existed before the priority date of the design (s 15)
• examine the design to ensure it is not of a type that cannot be registered (s 43(1), reg 5.02, s 65(2)(b)).

The examiner will also consider any material submitted by a person under s 69.

that accompanies a request for examination. A person can provide material even if they have not requested (s 63(1)) that the design be examined.

The examiner may need to deal concurrently with more than one request for the same design. Also, they may receive further requests for examination of a design even after the design is certified.

If the examiner finds that the design is registrable, they will issue a certificate of examination (certification). If they find there is a ground for revocation of the design registration, they will notify the applicant and give them an opportunity to address any issues.

​​​​​​​Examination of a design is not a linear process. The examiner can examine a design, request further information from the applicant and then re-examine the design – this process can happen several times. See Examination and certification processes for a flowchart and summary.

At the end of the examination, the examiner must be ‘satisfied’ about the presence or absence of a ground for revocation (s 67, s 68).

The examination must be completed within the required time frame.