21.4. Satisfied: Reasonable doubt, balance of probabilities and uncertainty

Reasonable doubt and balance of probabilities

Decisions under the Designs Act 2003 are based on the civil standard, i.e. something must be more likely than not on the balance of probabilities. 

For instance, under s 68, the Registrar must be satisfied, after examining a design, that a ground for revocation of registration has been made out. 

As such ‘being satisfied’ does not mean ‘having absolute certainty’. That is, it is logically possible to be satisfied that a ground for revocation has been made out even where there is an element of doubt. 

For this reason, incoming submissions arguing the examiner’s decision should focus on the examiner ‘being satisfied’ that a ground for revocation exists rather than on raising doubt about the presence of a ground for revocation.

Also, it is the examiner’s assessment that is relevant, not that of the owner or agent. In deciding whether they are satisfied that a ground for revocation has been made out, examiners must consider reasoned argument based on evidence. The owner’s or agent’s personal views of the merits of the case are irrelevant.

This does not mean that an examiner should maintain an objection just because a submission has not argued against it. Examiners must always reappraise the validity of an objection at each report stage.

Uncertainty

In situations where there is uncertainty as to whether a citation discloses an important visual feature, the Registrar is unlikely to be satisfied that a ground for revocation has been made out.​​​​​​​

Example

In Sportservice Pty Ltd [2007] ADO 6, when looking at a citation by the examiner, the hearing officer was unable to determine what shape a key visual feature was based on. This contributed to the hearing officer’s decision that they were not satisfied that a ground for revocation had been made out. The hearing officer states at 15 [emphasis added]:

"Superficially, the present design appears to lack distinctiveness over the cited bicycle rack. However I cannot determine whether the cited rack is based on round or square tubing. And the collar section of the design appears more prominent in the actual product than in the representations (with those representations fairly representing the actual product) – such that it does have a noticeable impact on the overall impression of the product. In these circumstances I am not satisfied that a ground of revocation has been made out."