21.5. Satisfied: ‘Not satisfied’

As part of examination, the examiner must be satisfied:

• that a ground for revocation has not been made out (or would be removed after amending register detail) (s 67); OR
• that a ground for revocation has been made out and would not be removed by a s 66 amendment request (s 68).

An examiner may, as part of undertaking the examination, reach a position that they are not necessarily satisfied that either one does apply.

For example, in response to an objection, an owner provides a declaration about the standard of the familiar person / informed user. The examiner may accept the information and logic supplied as to what the particular standard should be. This may result in the examiner needing to reconsider the basis on which the objection was raised. But if the examiner has serious doubts about the credibility of the declaration, they will need to decide what weight to give to assertions made in the declaration.

​​​​​​​We must remember that, to revoke a design, the Registrar must be satisfied that a ground for revocation has been made out. In a situation where the Registrar is not satisfied that a ground for revocation exists and at the same time is not satisfied that a ground for revocation does not exist, the examination will be taken as being completed (s 67). This is because refusal would lead to irretrievable loss of rights. However, the Registrar will not complete examination on this basis unless it is clear that further examiner reports, hearings and potentially court proceedings will be unlikely to further clarify the issues.