12.6. Section 43 refusal to register: Arms, flags, emblems etc.

The Registrar will refuse registration for any design that shows:

• the arms or a flag or seal of the Commonwealth or a state or territory. Also included are flags prescribed by the Flags Act 1953, which includes the Australian Aboriginal Flag and the Torres Strait Islander Flag
• the arms or emblems of a state or territory, a city or town in Australia, or a public authority or public institution in Australia
• the arms, flags, state emblems or other signs of another country (s 43; reg 4.06).

​​​​​​​A ‘public authority’ is any authority or body constituted by or under the law of the Commonwealth or an Australian state or territory.

A ‘public institution’ is any institution that the public have access to and is run for public use.

How we apply this exclusion

The exclusion applies to designs that are flags, emblems etc., not to designs that contain these symbols along with other visual features (see reg 4.06(e), (f) and (g) for a list of classes). We will refuse registration if the design as a whole can be said to be one of the symbols listed in reg 4.06 – e.g. if the overall appearance of the product is an accurate depiction of the Australian flag.

Unlike the case with trade marks, this exclusion applies only to full and correct symbols – i.e. to the whole symbol, not to components or elements of the symbol. For example, although a kangaroo and an emu feature in the Commonwealth Coat of Arms, there are no restrictions on using kangaroos or emus in other designs.

Note that the approach we now take to this exclusion is different from the one taken under the 1906 Act. The previous approach was that the Registrar could refuse to register any design which consisted of, embodied or contained any representation of (flags, arms, emblems etc.) – e.g. the Registrar could refuse a design applied to any product that included, among other visual features, an accurate representation of an Australian flag (reg 62(2) of the National Security (Supplementary) Regulations, made under the Defence (Transitional Provisions) Act 1946 (Cth)).