12.1. Section 43 refusal to register: overview

Key legislation in this topic: Designs Act: s 43; Designs Regulations: reg 4.06, sch 2

Key related topics:

Section 43 of the Designs Act concerns designs that the Registrar must refuse. A design is assessed against s 43 matters during both the formalities assessment and the examination of a registered design.

The Registrar must refuse to register certain types of designs (s 43). Under reg 4.06, these are designs that:

• are for medals
• use the word Anzac
• could be mistaken for money
• could be scandalous or might reasonably be taken to be scandalous
• use the arms (i.e. coat-of-arms), flag, seal or emblems of a country, a state or territory, an Australian city or town, or an Australian public authority or public institution.
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Formalities assessment

The formalities officer assesses whether the design is in one of the non-registrable categories. If it is, the officer will send the applicant a formalities notice refusing the registration on the grounds of s 43.

The relevant date for assessing compliance with s 43 is the date of registration of the design, not the filing date or priority date of the design, so we may refuse to register a design on s 43 grounds any time before the registration date.

Examination

Circumstances that arise after registration are not matters that would be considered under s 43. However, if the registered design is being examined, the examiner will consider s 43 in determining whether there is any ground for revocation of the design (s 65). One of the prescribed grounds is that, under s 43, a design should not have been registered (reg 5.02). If the examiner raises this ground, the matter will progress to a hearing.