22.6.6. Other types of amendments: Rectification by court order

A person may apply to a court for orders requiring the Register to be rectified (s 120).

The grounds of a court order for rectification under s 120 are different from the grounds of a court order for revocation under s 93 and can be invoked in a range of circumstances.

The Registrar would not normally be involved in the court proceedings, although they have a right of appearance (s 120(3)). However, to ensure that court orders can be given practical effect, a party might seek the Registrar’s advice on the form of orders that the court might make. These requests must be referred to the Hearings section for action.

The court must give a copy of the order to the Registrar, who must give effect to that order (s 120(4)). However, when the Registrar gives effect to the order, they must keep in mind relevant court procedures – in particular, appeals and stays.

There are some practical issues that can arise:

• A party (rather than the Court Registrar) serves a copy of the order on the Registrar. Generally, the Registrar will act on the court order if it is clear that the order is genuine (and bears the court seal) and that the appeal period has expired and no appeal has been filed.
• A party ‘demands’ that the order be implemented ‘immediately’: This will usually happen when a successful party wants an order revoking a design to be implemented before the design owner files an appeal against the decision. The Registrar will deal with the matter in a manner that is open and transparent to all parties to the court proceedings. Note that the Registrar:

• does not have to give instantaneous effect to the court order (unless the court order expressly requires it)
• does not have to wait until the end of the appeal period and check whether an appeal has been filed before giving effect to the court order
• can notify the other party of the order and let them know that we intend to give effect to the order unless they make a stay application within a short time.

• The court does not provide the order to the Registrar: The Registrar can decide not to take any action until the court has provided a copy of the order in accordance with s 120(4).
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If any of these issues arise, we must refer them to the Hearings section immediately.