8.4. Examination and certification: Third party initiated examinations

A third party can request examination of a registered design (s 63(1)).

A ‘third party’ is a person who is neither the registered owner of a design nor a prescribed court. For example, a competitor or other interested party may request examination if they want to test the validity of a registered design.

See Examination and certification processes for a summary of the third party initiated examination process.

The third party may supply material relating to newness and distinctiveness (s 69). However, the examiner cannot debate issues to do with newness and distinctiveness with the third party.

The third party has a right to be heard on the outcome of the examination.

Requirements for filing material

Duplicates

If the third party files material they must provide duplicates (reg 5.08(1)(a)). This is so that we can send the owner a copy (s 69(3)(b)). Unless duplicates are provided, we can treat the request as not being in the approved form and return the documents to the person who submitted them (reg 11.27(3)(a)). We will do this unless the amount to be copied is very small.

Physical evidence

A third party must get the Registrar’s approval if they want to submit physical evidence (s 69(2)).

Legibility

The material must be legible. If it is not legible, we can return the documents to the person who submitted them (reg 11.27(3)(a)). Alternatively, we may treat the request as having been filed and examine the material to the extent that they are clear enough to read.​​​​​​

Fees

The third party must pay half the examination fee (reg 11.06). The registered owner is invited to pay the other half (reg 11.05). See Fees for more information.