8.11. Examination and certification: Notice of intention to certify

The examination generally ends with the examiner finding that either:

• there are no grounds for revocation of the registration
• the grounds for revocation will be removed if the Register is amended as the owner has requested (see s 66(3)).

At this point the examiner will either:

• issue a certificate of examination immediately
• issue a ‘notice of intention to certify’ (s 67).​​​​​​​​​​​​​​​​​​​​​​​​

Certificate of examination

The examiner will issue a certificate of examination immediately if:

• the owner requested the examination
• no-one else is listed in the Register as having an interest in the design – i.e. part-ownership, a licence or a security interest.

Notice of intention to certify

The notice of intention to certify is a letter stating that the Registrar intends to certify the design. It goes to all the relevant people:

• the registered owner (or owners) of the design
• the third party requester (if the request did not come from the owner)
• anyone else who the Register records as having an interest in the design – i.e. a licence or a security interest.

This notice will:

• briefly explain why the Registrar considers it appropriate to certify the design

• provide details of any proposed amendments to remove grounds for revocation
• set a deadline for recipients to request to be heard. This is usually 1 month from the date of the letter but the time frame can be changed if there are exceptional circumstances (s 137).

The option to request to be heard provides an opportunity for a third party to object to the certification. For example, a third party who requested the examination may request a hearing on the basis that they believe the registered design is not new and distinctive or should not (under s 43) have been registered.

If there are no hearing requests

If no-one requests a hearing before the deadline and the examiner remains satisfied that the design should be certified, the examiner will issue a certificate of examination a few days after the deadline passes.

If we receive a request for extension of the deadline after it has expired but before the certificate is issued, we need to consider that request (see British Sky Broadcasting v Registrar of Trade Marks 58 IPR 216).

If there is a hearing request

Requests to be heard are normally in writing but they do not have to be.

​​​​​​​If the examiner receives an oral request for a hearing, they will:

• make a file note about it
• issue an invitation to pay (ITP) notice immediately (advising the requester that they need to pay the hearing fee before we schedule the hearing)

notify the owner and any other relevant people (i.e. everyone who received the notice to certify) of the request.