22.6.1. Other types of amendments: Clerical error and obvious mistake

Clerical error

A clerical error is an error that happens during the process of transcription. The result is that something other than what was intended is entered on the Register.

If the error occurred in documents that were submitted to the Registrar, the owner will need to provide evidence to show that, at the time the documents were prepared, the error did not reflect their intention. They will need to give some indication of why the submitted documents did not reflect their intention. The evidence needs to clearly demonstrate the existence of the intention – not a subsequent change of mind.

The Registrar is more likely to exercise their discretion under reg 9.05(2) if the owner can demonstrate their intention and other facts via a declaration.

Obvious mistake

An obvious mistake is one where both the mistake and the correction are obvious by looking at the Register.

​​​​​​​If other documents must be analysed to determine whether there is a mistake or to determine the correction, the mistake is not an obvious one and cannot be rectified as an ‘obvious mistake’ under reg 9.05(1). The owner must give evidence that clearly demonstrates that the mistake did not reflect their intention at the time.

The Registrar will be more likely to exercise their discretion under reg 9.05(2) if the owner can demonstrate their intention and other facts via a declaration.

Errors by the Designs Office

If there is an error by the Designs Office – e.g. information from the application is incorrectly entered on the Register – and there has been no error by the owner then reg 9.05(1) applies.

The Registrar can seek comments from anyone entered on the Register as having an interest in the design. The Registrar will not do this as a matter of course but may do so if the amendment that is sought might affect the interests of those persons (reg 9.05(3)).

Generally speaking, changes to name and address and corrections of simple typographical errors would not materially alter the meaning or scope of the entry in the Register.

However, a correction that could affect the scope or validity of the design (e.g. changing the number or date of a priority application) materially alters the meaning or scope of the entry in the Register. In that case, the Registrar will advertise the amendment in case someone wants to oppose it (reg 9.05(4)).

Advertisement

A proposal to correct a clerical error or obvious mistake appearing on the Register may need to be advertised for opposition purposes. The trigger is whether the proposed amendment would materially alter the meaning or scope of the Register entry.

​​​​​​​If a third party opposes the proposed amendment, this is handled by the Oppositions and Hearings section of the Designs Office.