27.2. Publication and file access: Designs not publicly available

Date Published

Generally, by default the whole file becomes publicly available after registration or publication. However, if

  • the application was amended to exclude one or more designs;
  • one or more designs were withdrawn from the application; or
  • one or more designs was neither registered nor published

the designs that were excluded, withdrawn or not registered or published are not publicly available. Any other document that relates exclusively to those designs is also not publicly available (s 60(4)).

If an applicant submits and pays for an application that includes more than one design, each design is given a separate file. Whilst unlikely that a file for a registered/published design will also contain correspondence and notes about a design or designs that are not publicly available, correspondence that applies to all initially submitted designs could be included in each design file.

A request to amend one of those designs under s 28 or s 66 can rely on any material filed with the application. However, that material might not be located in the file of the design being amended. Where some of those designs are registered or published, and others are not, careful consideration needs to be given to which documents in the file to make publicly available.

If a single design application is submitted and ‘further designs’ are included, the designs share the single file and the initial correspondence with the applicant will reference the designs. That correspondence will become open to public inspection once any of the designs are registered or published.

Prior to registration or publication:

  • if a formalities officer needs to communicate with the applicant with respect to several designs; and
  • that correspondence includes some or all representations (or otherwise discloses material detail of the designs)
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The formalities officer should attempt to provide separate communication about each design – and will only include the representation of another design if that is unavoidable in the circumstances.