25.5. Ownership disputes: Disputes about recording a change of ownership before registration

If there is a change of ownership before registration, it is recorded it under s 30.

Disputes relating to this process rarely arise. If they do, the Registrar deals with them under s 29.

Ownership and entitlement disputes involving s 29 are mainly:

• disputes between joint applicants who cannot agree on if or how the application should proceed.
• disputes that have arisen where a third party asserts, they should be either a joint applicant or the applicant for the design.

Disputes most often involve the latter. For more about the former, see Disputes between joint applicants.

In either case all parties are given an opportunity to put forward their evidence. The type of evidence that will be required will depend on the facts of each case. However, the Registrar must ensure that each party has a reasonable opportunity to put forward their case and respond to the case of the other party (Somnomed Ltd v Commissioner of Patents [2006] FCA 765).

Once evidence has been filed, the Registrar will set the matter for a hearing.

An unrepresented third party will have difficulties when prosecuting a s 29 request because the details of the design will not have been ‘published’ at this stage.

Both parties will have the opportunity to put forward their cases and place all evidence before the Registrar. The Registrar will then set the matter for a hearing.

If the Registrar determines that a third party is entitled to be the applicant or joint applicant of the design application, a new design application does not need to be filed. The original design application will be changed to include or erase an applicant.

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Disputes involving assignment or devolution of title (s 30)

The issues which can arise in registering assignments or devolution include:

• errors in the assignment document.
• time-limited assignments and partial assignments.
• entitlement of a later registered owner.
• assignment by a co-owner.
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Issues raised under s 30 before registration of a design are the same issues that may be raised after registration (see Disputes where some designs have been registered or published). However, where a dispute over the validity of an assignment arises before the design is registered, the Registrar will deal with the issue under s 29.