18.3. Prior publication or use exceptions: Unauthorised disclosures

Date Published

We will disregard the publication or use of the subject design before the priority date if the person who published or used it did so without the consent of the owner (previous s 17(1)(b)).

This section may only apply to uses and publications occurring before 10 March 2022

Conditions for this exception

For s 17(1)(b) to be considered, the subject design needed to be filed within 6 months of the date of first publication or use (reg 2.01(3)). It is the application filing date of the subject design that is relevant, not its priority date. See Allen Hardware Products v Tclip [2008] ADO 8 at 44.  

In response to a ground for revocation being raised, the owner:

  • must be able to show that the publication actually was unauthorised
  • should provide information that addresses the requirement that the unauthorised publication or use was done by another person
  • should provide information that satisfies the examiner on the balance of probabilities that derivation of the design from the owner has occurred.

A declaration should engage with the wording and requirements of s 17(1)(b). Information about any confidentiality agreements, that supports the publication or use being unauthorised, may also be helpful. Simple statements without any evidence or information that explains the set of circumstances that led to the unauthorised publication or use will not be persuasive.


Potential for dispute

Noting the types of situations that are commonly seen when this provision is being relied upon, and the particular actions of more than one person, there can be an increased risk of a dispute between interested parties. It may be more appropriate for relevant parties to be heard on this type of matter. ​​​​​​​

Amended Reasons

Amended Reason Date Amended

grace period minor changes.