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This article appeared in the Australian Intellectual Property Law Tracker
What are the issues? ACIP’s designs review

Stakeholders have until 31 October 2013 to comment on the Advisory Council on Intellectual Property’s Issues Paper Review of the Designs System. The paper is not exhaustive. At least one firm has commented on an issue that was not canvassed in detail in the Issues Paper.

Caroline Bommer and Rodney Dabboussy, Shelston IP, “Australian Designs under Review”, December 2012. This article predates ACIP’s Issues Paper. It comments on the illusory value of multiple design applications. This issue was not discussed in detail in the Issues Paper, but it was mentioned in the list of other relevant issues on p 26.

ACIP has laid out a set of issues and questions (summarised below), but has welcomed other relevant comments.

Summary of issues and questions

  • Duration of design protection
    • 1. Should the maximum term be more than 10 years?
  • Grace period
    • 2. Would a grace period be beneficial?
    • 3. How long should any grace period be for?
    • 4. Should it be an alternative, or an addition to deferment of publication?
  • Statement of Newness and Distinctiveness
    • 5. Is there confusion about the use of Statements of Newness and Distinctiveness?
    • 6. Should Statement of Newness and Distinctiveness be mandatory?
  • Deferred Publication
    • 7. Is a deferred publication process desirable? What are the dis/advantages?
    • 8. How long should the deferment period be?
  • Unregistered Designs Rights (UDRs)
    • 9. What are the benefits and/or costs of introducing an Unregistered Design Right system?
    • 10. Would such a system create confusion? How could any confusion be limited?
  • Harmonisation with international practices (ie The Hague Agreement)
    • 11. Would Australia benefit from acceding to the Hague System?
  • Border Protection Measures
    • 12. Would Australia benefit from including designs in the Notice of Objection scheme?
  • Design overlap with other IP rights
    • 13. Are the copyright/design overlap provisions operating satisfactorily?
    • 14. Should there be restrictions in the Trade Marks Act 1995 for registered designs?
  • Threshold of registrability
    • 15. Have the changes to the threshold of registrability introduced with the Designs Act 2003 provided greater differentiation between a new design and the prior art?
  • Confusion regarding the registration/publication/examination process
    • 16. Are the differences between registration, publication and certification clear? Should the multi-step process remain?
    • 17. Is there a continuing need for publication (and the current regime of requesting registration or publication)?
  • The (potential) impact of new technologies
    • 18. Is the Designs Act 2003 able to deal with new technologies, eg 3D printing and Graphical User Interfaces (GUIs)?
    • 19. Should GUIs be registrable?
  • OtherUK law reformOperation of broader test of infringementConsideration of broken lines in representationsValue of multiple design applicationsPost registration amendment of the statement of newness and distinctiveness
    • 20. Are there any new opportunities for enhancing the designs system?
    • 21. Are there any unintended consequences arising from its implementation to date?
    • 22. Do you have any other comments?

Source: Advisory Council on Intellectual Property, Issues Paper Review of the Designs System, September 2013.

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