World Intellectual Property Organization

Australia

Design Amendment Act 1981

 

 

DESIGNS AMENDMENT ACT 1981 No. 42, 1981

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 1.

Short title.

DESIGNS AMENDMENT ACT 1981

No. 42 of 1981

An Act to amend the Designs Act 1906, and for related purposes

BE IT ENACTED by the Queen, and the Senate and the House of Representatives

of the Commonwealth of Australia, as follows:

PART I - PRELIMINARY

Short title

1. This Act may be cited as the Designs Amendment Act 1981.*1*

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 2.

Commencement

2. (1) Sections 1 and 2 shall come into operation on the day on which this

Act receives the Royal Assent.*1*

(2) Section 31, Part IV and sub-section 36 (2) shall come into operation on

a date to be fixed by Proclamation.

(3) The remaining provisions of this Act shall come into operation on a date

to be fixed by Proclamation.

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 3.

Principal Act

PART II - AMENDMENTS OF THE DESIGNS ACT 1906

3. The Designs Act 1906*2* is in this Part referred to as the Principal

Act.

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 4.

Title

4. The title of the Principal Act is amended by omitting "Copyright in

Industrial Designs" and substituting "designs".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 5.

5. Sections 4, 4A, 4B and 5 of the Principal Act are repealed and the

following sections substituted:

Interpretation

"4. (1) In this Act, unless the contrary intention appears -

'article' means any article of manufacture and includes a part of such an

article if made separately;

'artistic work' has the same meaning as in the Copyright Act 1968;

'Australia' includes Norfolk Island;

'Convention country' means a country in respect of which there is in force

for the time being a Proclamation under section 48 declaring that country to

be a Convention country for the purposes of this Act;

'corresponding design' has the same meaning as in Division 8 of Part III of

the Copyright Act 1968;

'Deputy Registrar' means the Deputy Registrar of Designs holding office

under this Act;

'design' means features of shape, configuration, pattern or ornamentation

applicable to an article, being features that, in the finished article, can be

judged by the eye, but does not include a method or principle of

construction;

'monopoly', in relation to a registered design, means the exclusive right to

apply the design to an article in respect of which the design is so

registered;

'Official Journal' means the Official Journal referred to in section 175 of

the Patents Act 1952;

'owner' means -

(a) in relation to a design that is not a registered design - a person who

is the owner of the design in accordance with section 19 or, if there are 2 or

more persons who have an interest in the design in accordance with that

section, each of those persons; or

(b) in relation to a registered design - the person who is registered as

the owner of the registered design or, if there are 2 or more such persons,

each of those persons;

'prescribed court' means the Supreme Court of a State, the Supreme Court of

the Australian Capital Territory, the Supreme Court of the Northern Territory

of Australia or the Supreme Court of Norfolk Island;

'register' means the Register of Designs under this Act;

'registered' means registered under this Act;

'registered design' means a design registered under this Act;

'Registrar' means the Registrar of Designs holding office under this Act;

'representation', in relation to an article to which a design is applied,

means a drawing, tracing or specimen of the article to which the design is

applied or a photograph of such a drawing, tracing or specimen;

'set of articles' means a number of articles that are of the same general

character and ordinarily on sale, or intended to be used, together, being

articles to each of which there is applied a design that is the same as, or

that differs only in immaterial details or in features commonly used in the

relevant trade from, the design applied to the other articles or to any of

them;

'State Designs Act' means any State Act relating to the registration of

designs;

'statement of monopoly', in relation to a design, means a statement relating

to the representations of an article to which the design is applied that

indicates -

(a) those features of the representations in respect of which the

applicant for registration of the design wishes to claim a monopoly; and

(b) those features of the representations that are to be disregarded in

considering the extent of the monopoly protection;

'statement of novelty', in relation to a design, means a statement relating

to the representations of an article to which the design is applied that

indicates those features of the representations in respect of which novelty or

originality is claimed.

"(2) A reference in this Act to an article shall be read as including a

reference to -

(a) a set of articles;

(b) each article in a set of articles; or

(c) both a set of articles and each article in that set,

as the case requires.

References to prescribed court

"5. A reference in this Act to a prescribed court shall -

(a) in relation to the institution of an appeal or other proceeding, be read

as a reference to a prescribed court having jurisdiction with respect to

matters arising under this Act in respect of which the appeal or other

proceeding is instituted; and

(b) in relation to the exercise of jurisdiction, be read as a reference to a

prescribed court exercising jurisdiction in accordance with section 40G.

Crown to be bound

"5A. This Act binds the Crown in right of the Commonwealth, of each of the

States, of the Northern Territory and of Norfolk Island.

Application of Act to Norfolk Island

"5B. (1) This Act extends to Norfolk Island.

"(2) An application for registration of a design is not receivable under a

law (other than this Act) in force in Norfolk Island.".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 6.

Registrar and other officers

6. Section 8 of the Principal Act is amended by omitting sub-section (3) and

substituting the following sub-sections:

"(3) There shall be a Deputy Registrar of Designs, who shall, subject to the

control of the Registrar, have all the powers and functions of the Registrar

under this Act, other than the powers of the Registrar under section 8A.

"(4) Until the Governor-General otherwise determines, the Deputy

Commissioner of Patents shall be the Deputy Registrar of Designs.

"(5) A power or function conferred or imposed on the Registrar by this Act,

when exercised or performed by the Deputy Registrar, shall, for all purposes,

be deemed to have been exercised or performed by the Registrar.

"(6) There shall be one or more Assistant Registrars of Designs.".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 7.

7. After section 8 of the Principal Act the following section is inserted:

Delegation by Registrar

"8A. (1) The Registrar may, either generally or as otherwise provided by the

instrument of delegation, by writing signed by him, delegate to an Assistant

Registrar of Designs any of his powers or functions under this Act, other than

this power of delegation.

"(2) A power or function so delegated, when exercised or performed by the

delegate, shall, for the purposes of this Act, be deemed to have been

exercised or performed by the Registrar.

"(3) A delegation under this section does not prevent the exercise of a

power or the performance of a function by the Registrar.".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 8.

Repeal of Part III of Principal Act

8. Part III of the Principal Act is repealed.

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 9.

New or original design may be registered

9. Section 17 of the Principal Act is amended -

(a) by omitting sub-section (1) and substituting the following

sub-sections:

"(1) Subject to this Act, a design shall not be registered unless it is a

new or original design and, in particular, shall not be registered in respect

of an article if the design -

(a) differs only in immaterial details or in features commonly used in the

relevant trade from a design that, before the priority date in respect of the

application for registration, was registered, published or used in Australia

in respect of the same article; or

(b) is an obvious adaptation of a design that, before the priority date in

respect of the application for registration, was registered, published or used

in Australia in respect of any other article.

"(1A) For the purposes of sub-section (1), account shall not be taken of

any secret use."; and

(b) by omitting from sub-section (2) "or for articles included in such

classes of articles,".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 10.

Certain designs not to be treated as other than new or original, &c.

10. Section 17A of the Principal Act is amended -

(a) by omitting from paragraph (1) (c) ", or articles included in a class of

articles, specified in regulations made for the purposes of sub-section (2) of

the last preceding section" and substituting "specified in regulations made

for the purposes of sub-section 17 (2)"; and

(b) by omitting from sub-section (2) "the last preceding sub-section" and

substituting "sub-section (1)".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 11.

11. Sections 18, 19, 20, 21 and 22 of the Principal Act are repealed and the

following sections substituted:

Design may include functional features

"18. An application for registration of a design shall not be refused, and a

registered design is not invalid, by reason only that the design consists of,

or includes, features of shape or configuration that serve, or serve only, a

functional purpose.

Owner of unregistered design

"19. (1) Subject to this section, the author of a design is the owner of the

design.

"(2) Where, in accordance with an agreement for valuable consideration

entered into by a person with another person, the other person or an employee

of the other person acting in the course of his employment makes a design for

the first-mentioned person, the first-mentioned person is the owner of the

design.

"(3) Subject to sub-section (2), where a design is made by a person in the

course of his employment with an employer, the employer is the owner of the

design.

"(4) The owner of a design or the assignee of any interest in a design may,

by instrument in writing signed by him or on his behalf, assign to another

person the whole or any part of his interest in the design.

"(5) In this section, 'design' does not include a registered design.

Application for registration

"20. (1) The owner of a design is entitled to make application for the

registration of the design.

"(2) Where 2 or more persons own interests in a design, all of the persons

owning such interests, acting jointly, are entitled to make application for

the registration of the design.

"(3) An application for registration of a design -

(a) shall be in accordance with a prescribed form;

(b) shall be accompanied, as prescribed, by the prescribed number of

representations of an article to which the design is applied; and

(c) shall be lodged by being left at, or delivered by post to, the Designs

Office or a sub-office.

"(4) An application under sub-section (3) may be accompanied by a statement

of monopoly in respect of the design to which the application relates.

"(5) Upon lodgment of an application under sub-section (3) -

(a) the Registrar may request the applicant to furnish a statement of

novelty in respect of the design to which the application relates; and

(b) if the application was not accompanied by a statement of monopoly in

respect of the design to which the application relates and the Registrar

considers it appropriate that such a statement be furnished - the Registrar

may request the applicant to furnish such a statement.

Priority date

"21. (1) There shall be a priority date in respect of an application for the

registration of a design.

"(2) Subject to this Act, the priority date in respect of an application for

registration of a design is the date on which the application was lodged under

this Act.

Registered design not to be invalid by reason of certain circumstances

"22. A registered design is not invalid by reason only of -

(a) the publication or use of the design in Australia on or after the

priority date in respect of the application for registration of the design;

or

(b) the registration of another design the application in respect of which

has the same or a later priority date.

Death of applicant

"22A. (1) If an applicant for the registration of a design dies before the

design is registered, his legal personal representative may be registered as

the owner of the design.

"(2) Where, at any time after a design has been registered on an

application, the Registrar is satisfied that the applicant had died or, in the

case of a body corporate, had ceased to exist, before the design was

registered, the Registrar may amend the relevant entry in the register by

substituting for the name of the applicant the name of the person who ought to

have been registered as the owner of the design.

"(3) Where the Registrar has amended an entry in the register under

sub-section (2), the registration has effect, and shall be deemed always to

have had effect, accordingly.

Amendment of application, &c.

"22B. (1) The Registrar may, on request made to him in the prescribed

manner, amend an application for registration of a design lodged under this

Act.

"(2) An appeal lies to a prescribed court from a refusal by the Registrar to

amend an application under sub-section (1).

"(3) In this section -

'amend', in relation to a representation of an article to which a design is

applied, includes the substitution of one representation for another

representation;

'application for registration of a design' includes the representations of

the article to which the design concerned is applied and any statement of

monopoly or statement of novelty in respect of the design.

Division of application after amendment

"22C. (1) Where -

(a) an amendment of an application for registration of a design has been

made under section 22B; and

(b) the amendment has the effect of excluding a design or designs from the

application,

the applicant may, at any time before the registration, or the refusal of the

registration, on that application, of a design, make a further application (in

this section referred to as a 'divisional application') for registration of

the design, or each design, so excluded.

"(2) For the purposes of this Act, a divisional application for registration

of a design shall be deemed to have been lodged under this Act on the date on

which the original application for registration of the design was so lodged

and the priority date in respect of such a divisional application is the

priority date in respect of the original application.".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 12.

Registrar may register design

12. Section 23 of the Principal Act is amended -

(a) by omitting "applicant is the owner thereof" and substituting "applicant

is, or the applicants are, entitled to make the application"; and

(b) by adding at the end thereof the following sub-sections:

"(2) For the purpose of deciding whether the design is new or original,

the Registrar may cause such searches to be made as he thinks fit.

"(3) The registration of a design shall be a registration in respect of

the article specified in the application.".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 13.

13. Sections 24, 24A and 25 of the Principal Act are repealed and the

following sections substituted:

Registrar may refuse to register design

"24. (1) Subject to sub-section (2), the Registrar may refuse to register a

design, either generally or in respect of the article specified in the

application for registration.

"(2) The Registrar shall not refuse to register a design until the

applicant, or each of the applicants, has been given an opportunity of being

heard.

"(3) An appeal lies to a prescribed court from a refusal by the Registrar to

register a design.

Monopoly in design

"25. Subject to section 25A, the owner of a registered design has a monopoly

in that design.

Co-ownership of registered design

"25A. (1) Where there are 2 or more owners of a registered design, each of

those owners is, unless an agreement to the contrary is in force, entitled to

an equal undivided share in the monopoly in that design.

"(2) Subject to this section and to section 25B, where there are 2 or more

owners of a registered design, each of those owners is, unless an agreement to

the contrary is in force, entitled, by himself or his agents, to make use of

the design for his own benefit without accounting to the other or others.

"(3) Subject to section 25B and to any agreement for the time being in

force, where there are 2 or more owners of a registered design, one of those

owners shall not grant a licence with respect to the use of the design, or

assign an interest in the design, except with the consent of the other or

others.

"(4) Where an article to which a registered design has been applied is sold

by one of 2 or more owners of the design, either by himself or his agents, the

purchaser, and a person claiming through him, is entitled to deal with the

article in the same manner as if it had been sold by both or all of the

owners.

"(5) Nothing in sub-section (1) or (2) affects the rights or obligations of

a trustee or of the legal personal representative of a deceased person, or

rights or obligations arising out of either of those relationships.

Power of Registrar to give directions to co-owners

"25B. (1) Where there are 2 or more owners of a registered design, one or

more of those owners may make application to the Registrar to give such

directions as to a dealing with the design or an interest in the design, the

grant of licences with respect to the design or the exercise of a right under

section 25A in relation to the design, as he thinks fit.

"(2) Upon application made to the Registrar under sub-section (1), the

Registrar shall, if he is satisfied that a direction should be given in

relation to the matter raised in the application, give such a direction as he

thinks appropriate but, if he is not satisfied, shall refuse to give a

direction.

"(3) If an owner, within 14 days after being requested in writing by one of

the other owners to execute an instrument or to do some other thing required

for the carrying out of a direction given under sub-section (2), fails to

execute that instrument or to do that thing, one of those other owners may

make application to the Registrar to give directions empowering a person to

execute that instrument or to do that thing in the name and on behalf of the

owner in default.

"(4) Upon application made to the Registrar under sub-section (3), the

Registrar shall, if he is satisfied that a direction should be given in

relation to the matter raised in the application, give such a direction as he

thinks appropriate but, if he is not so satisfied, shall refuse to give a

direction.

"(5) Before giving a direction under this section, the Registrar shall give

an opportunity to be heard -

(a) in the case of an application under sub-section (1) - to the other owner

or owners; or

(b) in the case of an application under sub-section (3) - to the owner in

default.

"(6) A direction shall not be given under this section if it -

(a) would affect the rights or obligations of a trustee or of the legal

personal representative of a deceased person, or rights or obligations arising

out of either of those relationships; or

(b) would be inconsistent with the terms of an agreement between the

owners.

Rights of registered owner to be personal property, &c.

"25C. (1) The rights of an owner with respect to a registered design are

personal property and are capable of assignment and transmission by operation

of law.

"(2) Subject to this Act, the laws applicable to ownership and devolution of

personal property apply in relation to the monopoly in a registered design as

they apply in relation to other choses in action.

"(3) An assignment referred to in sub-section (1) shall be in writing signed

by or on behalf of the owner.

Subsequent registration of design in respect of other articles

"25D. (1) Where -

(a) a design (in this section referred to as the 'original design') has,

whether before or after the commencement of this section, been registered in

respect of an article; and

(b) the person registered as the owner, or all persons registered as owners,

of the design makes, or make jointly, an application -

(i) for registration of that design, or of another design that is an

obvious adaptation of that design, in respect of another article;

or

(ii) for registration, whether in respect of the same article or another

article, of a design that differs from the registered design only in

immaterial details or in features commonly used in the relevant trade,

the application shall not be refused, and the registration made on that

application is not invalid, by reason only of the previous registration, or of

any publication or use, after the priority date in respect of the aplication

for the previous registration, of the design registered on that application.

"(2) Where a design is registered by virtue of sub-section (1), the design

becomes a design to which this section applies.

"(3) The registration of a design to which this section applies shall be

deemed to have come into force on the date on which the application for

registration of the design was lodged under this Act and shall remain in force

so long as the registration of the original design remains in force, and no

longer.

"(4) If under section 28 a prescribed court cancels the registration of the

original design in relation to a design to which this section applies, that

cancellation does not, unless the prescribed court otherwise orders, affect

the registration of the design to which this section applies but, on that

cancellation, the design to which this section applies ceases to be a design

to which this section applies.

"(5) Where -

(a) a person makes, or 2 or more persons acting jointly make, an application

for the registration of a design in respect of an article;

(b) that design -

(i) is a design that has previously been registered on the application of

another person in respect of another article or is an obvious adaptation of

such design; or

(ii) differs only in immaterial details or in features commonly used in

the relevant trade from a design that has previously been registered, whether

in respect of the same article or another article; and

(c) while the application is pending, the applicant, or each of the

applicants becomes registered as the owner of the previously registered

design,

the preceding provisions of this section apply as if the applicant, or each of

the applicants, had been registered as the owner of the previously registered

design at the time of the making of the application.".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 14.

Certificate of registration of design

14. Section 26 of the Principal Act is amended by omitting sub-sections (2),

(2a), (2b) and (2c).

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 15.

15. Section 27 of the Principal Act is repealed and the following sections

are substituted:

Registered designs open to public inspection

"27. (1) After a design has been registered, the application for

registration of the design, the representations of the article to which the

design is applied and any statement of monopoly or statement of novelty in

respect of the design shall, subject to this Act, be open to public

inspection.

"(2) Where a document referred to in sub-section (1) is a document that is

open to public inspection and that document has been or is amended, that

document as so amended is, subject to this Act, also open to public

inspection.

Period during which registration is in force

"27A. (1) The registration of a design shall be deemed to have come into

force on the date on which the application for registration of the design was

lodged under this Act and, subject to this Act, shall cease to be in force on

the expiration of a period of 12 months commencing on the date on which the

registration was made in the register.

"(2) Application may be made to the Registrar for an extension of the period

of registration of a design referred to in sub-section (1).

"(3) An application under sub-section (2) -

(a) shall be made at least one month before the expiration of the period

referred to in sub-section (1); and

(b) shall be made in the prescribed manner.

"(4) A person may, at any time before the expiration of the period of 11

months commencing on the date on which the registration of a design was made

in the register, lodge at the Designs Office a notice, in accordance with a

prescribed form, setting out any matter -

(a) that has been published in a document in Australia before the priority

date in respect of the application for registration of the design; and

(b) that the person considers to be relevant to the question whether the

design was not, at the priority date referred to in paragraph (a), a design

that was new or original.

"(5) The regulations may provide that a person who lodges a notice under

sub-section (4) shall lodge with the notice such number of copies as is

prescribed of the document to which the notice relates.

"(6) The Registrar shall give to the owner of a design referred to in

sub-section (4) notice, in writing, of any matter to which a notice lodged

under that sub-section relates.

"(7) A copy of a document lodged with a notice under sub-section (4) shall,

subject to the regulations, be open to public inspection.

"(8) Upon receipt of an application under sub-section (2) for extension of

the period of registration of a design, the Registrar shall, subject to this

Act , extend the period of registration of the design for a period that

expires on a date 6 years after the date on which the application for

registration of the design was lodged under this Act.

"(9) The Registrar may, having regard to any matter (including a matter

published in a document a copy of which has been lodged with a notice under

sub-section (4)) that has come to his notice in connection with a design

referred to in sub-section (4), refuse an application under sub-section (2)

for extension of the period of registration of a design on the ground that the

design was not, at the priority date in respect of the application for

registration of the design, a design that was new or original.

"(10) Where the Registrar refuses an application under sub-section (2) for

extension of the period of registration of a design, he shall notify the owner

of the design accordingly.

"(11) An appeal lies to a prescribed court from a refusal by the Registrar

of an application under sub-section (2) for extension of the period of

registration of a design.

"(12) Where -

(a) the period of registration of a design has been extended under

sub-section (8); and

(b) application is made to the Registrar for a further extension of that

period of registration,

the Registrar shall, subject to this Act, extend that period of registration

for a further period of 5 years.

"(13) Where -

(a) the period of registration of a design has been extended under

sub-section (12); and

(b) application is made to the Registrar for a further extension of that

period of registration,

the Registrar shall, subject to this Act, extend that period of registration

for a further period of 5 years.

"(14) An application under sub-section (12) or (13) shall be made in the

manner, and within the period, prescribed for the purposes of that

sub-section.

"(15) The Registrar shall cause to be published in the Official Journal

notice of -

(a) an application under sub-section (2) for extension of the period of

registration of a design;

(b) a refusal under sub-section (9) of such an application; and

(c) each extension under this section of the period of registration of a

design.

"(16) Where -

(a) a registered design was, at the time when it was registered, a

corresponding design in relation to an artistic work in which copyright

subsisted under the Copyright Act 1968;

(b) by reason of a previous use of that artistic work, the design would not

have been registrable under this Act but for section 17A; and

(c) the copyright in that artistic work under the Copyright Act 1968 expires

before the date on which the registration of the design ceases to be in

force,

the registration of the design ceases to be in force at the same time as the

copyright in the artistic work and shall not be extended after that time.

"(17) Notwithstanding the preceding provisions of this section, where a

design has ceased to be a design to which section 25D applies, the period of

registration of the design shall not be extended beyond the last date to which

the period of registration of the design that was the original design, within

the meaning of section 25D, in relation to the design that has so ceased could

have been extended under this section.

"(18) In this section, 'design' does not include a design to which section

25D applies.

Application for restoration of registered design

"27B. (1) Where -

(a) the period of registration of a design has been extended under

sub-section 27A (8); and

(b) the registration of the design has subsequently ceased to be in force by

reason of -

(i) failure to make application to the Registrar, within the period

prescribed for the purposes of sub-section 27A (12) or (13), as the case may

be, for a further extension of that period of registration; or

(ii) failure to pay a prescribed fee within the prescribed period,

then -

(c) the owner of the design;

(d) if the owner of the design has died - the legal personal representative

of the owner of the design; or

(e) a person who would, if the registration of the design had not ceased to

be in force, have been entitled, by assignment, transmission or other

operation of law, to the design,

may, for the purpose of permitting the extension of the period of registration

of the design, make application to the Registrar for the restoration of the

registration of the design.

"(2) The application shall contain a statement of the circumstances that led

to the relevant failure, and the Registrar shall, if he is satisfied that the

failure was unintentional and that no undue delay has occurred in the making

of the application, advertise the application in the Official Journal but, if

he is not so satisfied, shall dismiss the application.

"(3) A person interested may, within such period after the advertisement

under sub-section (2) of an application as is prescribed, give notice to the

Registrar of opposition to the restoration of the registration of the design

and shall serve a copy of the notice on the applicant.

Registrar to deal with application

"27C. (1) Where the Registrar has advertised in the Official Journal an

application for the restoration of the registration of a design, he shall,

after the expiration of the period referred to in sub-section 27B (3) -

(a) if a notice referred to in that sub-section has been given to him - hear

the matter and either restore the registration of the design or dismiss the

application concerned; or

(b) in any other case - restore the registration of the design.

"(2) The Registrar shall not restore the registration of a design under

sub-section (1) until -

(a) an application for extension of the period of registration of the design

is made under sub-section 27A (12) or (13), as the case may be; and

(b) all prescribed fees have been paid.

"(3) For the purpose of making an application referred to in paragraph (2)

(a), the fact that a period has been prescribed, under sub-section 27A (14),

for the making of that application shall be disregarded.

"(4) Where -

(a) the Registrar restores the registration of a design under sub-section

(1); and

(b) that design was the original design, within the meaning of section 25D,

in relation to another design that was a design to which section 25D applied,

the Registrar shall also restore the registration of the other design and,

thereupon -

(c) the other design again becomes a design to which section 25D applies;

and

(d) the design referred to in paragraph (a) again becomes the original

design, within the meaning of section 25D, in relation to the other design.

"(5) The Registrar may, if he thinks fit, as a condition of restoring the

registration of a design under sub-section (1), require that an entry be made

in the register in respect of a document or instrument in respect of which the

provisions of this Act as to entries in the register have not been complied

with.

"(6) Where the registration of a design is restored under this section, such

provisions as are prescribed have effect for the protection or compensation of

persons who availed themselves, or took definite steps by contract or

otherwise to avail themselves, of the design after the registration of the

design had ceased to be in force and before the date on which the application

for restoration of the registration of the design was advertised in the

Official Journal.

"(7) Actions or proceedings shall not be taken in respect of an infringement

of the monopoly in a registered design committed between the date on which the

registration of the design ceased to be in force and the date of the

restoration of the registration of the design.".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 16.

Applications to prescribed court

16. Section 28 of the Principal Act is amended -

(a) by omitting "the Supreme Court" and substituting "a prescribed court";

(b) by omitting from paragraph (a) "date of registration" and substituting

"priority date in respect of the application for registration of the design";

and

(c) by omitting "the Court" (wherever occurring) and substituting "the

court".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 17.

Duty of owner of registered design

17. Section 29 of the Principal Act is repealed.

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 18.

Heading to Part V

18. The heading to Part V of the Principal Act is amended by omitting

"COPYRIGHT" and substituting "MONOPOLY".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 19.

Infringement of monopoly in designs

19. Section 30 of the Principal Act is amended -

(a) by omitting from sub-section (1) "copyright in a registered design if,

while the copyright continues, he, without the licence or authority of the

owner of the copyright" and substituting "monopoly in a registered design if

he, without the licence or authority of the owner of the design";

(b) by omitting from paragraph (1) (b) "registered owner of the design" and

substituting "owner of the registered design";

(c) by inserting in paragraph (1) (c) "or hires, or offers or keeps for

hire," after "sale,";

(d) by omitting from sub-paragraph (1) (c) (i) "copyright" and substituting

"monopoly";

(e) by omitting from sub-paragraph (1) (c) (ii) "registered owner of the

design" and substituting "owner of the registered design"; and

(f) by omitting sub-section (2) and substituting the following sub-section:

"(2) If any person infringes the monopoly in a registered design, the

owner of the design may bring an action or proceeding against him for

infringement of the monopoly in the design.".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 20.

20. Sections 31 and 32 of the Principal Act are repealed and the following

sections substituted:

Infringement actions

"31. An action or proceeding for the infringement of the monopoly in a

registered design may be instituted in a prescribed court, but nothing in this

section prevents such an action or proceeding being instituted in a court that

is not a prescribed court.

Defendant may counter-claim for rectification of register

"32. A defendant in an action or proceeding for the infringement of the

monopoly in a registered design may apply, by way of counter-claim in the

action or proceeding, for the rectification of the register by the expunging

of the entry of the registration of the design from the register.

Intervention by Registrar in infringement action

"32A. A prescribed court may grant to the Registrar leave to intervene in an

action or proceeding for the infringement of the monopoly in a registered

design .

Remedies for infringement of monopoly in designs

"32B. (1) The relief that a court may grant in an action or proceeding for

the infringement of the monopoly in a registered design includes an injunction

(subject to such terms, if any, as the court thinks fit) and, at the option of

the plaintiff, either damages or an account of profits.

"(2) A court may refuse to award damages, or to make an order for an account

of profits, in respect of an infringement of the monopoly in a registered

design if the defendant satisfies the court -

(a) that, at the time of the infringement, he was not aware that the design

was registered; and

(b) that he had, prior to that time, taken all reasonable steps to ascertain

whether a monopoly in the design existed.".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 21.

Correction of register

21. Section 37 of the Principal Act is amended -

(a) by omitting from sub-section (1) "registered owner of a design" and

substituting "owner of a registered design"; and

(b) by omitting from paragraphs (1) (a) and (b) "registered" (wherever

occurring).

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 22.

22. Section 38 of the Principal Act is repealed and the following sections

are substituted:

Registration of assignments, transmissions, &c.

"38. Where a person becomes entitled to a registered design by assignment,

transmission or other operation of law, he shall apply to the Registrar to

register his title, and the Registrar shall, on receipt of the application,

and on proof to the satisfaction of the Registrar of the title of the

applicant, cause the name of the applicant to be entered in the register as

the owner of the design.

Registration of mortgages, licences, &c.

"38A. Where a person becomes entitled as mortgagee, licensee or otherwise to

an interest in a registered design, he shall apply to the Registrar to

register his title, and the Registrar shall, on receipt of the application,

and on proof to the satisfaction of the Registrar of the title of the

applicant, cause notice of the interest to be entered in the register,

together with particulars of the instrument creating the interest.

Unregistered instruments not to be admitted in evidence

"38B. Except in the case of an application under section 39, a document or

instrument in respect of which no entry has been made in the register in

accordance with the provisions of this Act is not, unless the court otherwise

directs , admissible in evidence in a court in proof of title to a design or

to an interest in a design.".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 23.

Rectification of register

23. Section 39 of the Principal Act is amended -

(a) by omitting from sub-section (1) "the Supreme Court" and substituting "a

prescribed court";

(b) by inserting in paragraph (1) (b) "or amendment" after "expunging";

(c) by omitting sub-section (1A) and substituting the following

sub-section:

"(1A) The reference in sub-section (1) to the expunging of an entry

wrongly remaining on the register includes a reference to the expunging of an

entry effecting the registration of a design where that design ceases to be in

force by reason of sub-section 27A (16)."; and

(d) by adding at the end thereof the following sub-section:

"(3) An office copy of an order under this section shall be served on the

Registrar, who shall, upon receipt of the order, take such steps as are

necessary to give effect to the order.".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 24.

24. Section 40 and Part VIA of the Principal Act are repealed and the

following Parts substituted:

"PART VIA - THE CROWN

Interpretation

"40. (1) In this Part, 'State' includes the Northern Territory.

"(2) In this Part, a reference to the Commonwealth shall be read as

including a reference to an authority of the Commonwealth and a reference to a

State shall be read as including a reference to an authority of a State.

"(3) This Part applies in relation to the Administration of Norfolk Island

as if that Administration were a State.

Use of designs for services of the Commonwealth or a State

"40A. (1) At any time after an application for registration of a design has

been lodged or a design has been registered, the Commonwealth or a State, or a

person authorized in writing by the Commonwealth or a State, may make use of

the design for the services of the Commonwealth or State.

"(2) An authority under sub-section (1) -

(a) may be given either before or after the registration of the design;

(b) may relate to, and authorize retrospectively the doing of, acts done

after the lodging of the application for the registration of the design and

before the giving of the authority; and

(c) may be given to a person notwithstanding that he is authorized directly

or indirectly by the owner of the design to make use of the design.

"(3) Where a design has been made use of under sub-section (1), the

Commonwealth or State, unless it appears to the Commonwealth or State that it

would be contrary to the public interest to do so, shall inform the owner as

soon as possible of the fact and furnish him with such information as to the

use made of the design as he from time to time reasonably requires.

"(4) Where a design is made use of under sub-section (1), the terms for that

use of the design are such terms as are, whether before or after that use,

agreed upon between the Commonwealth or the State and the owner of the design

or, in default of agreement, as are fixed by a prescribed court.

"(5) The prescribed court may, in fixing those terms, take into

consideration compensation that a person interested in the design has

received, directly or indirectly, from the Commonwealth or State in respect of

the design.

"(6) An agreement or licence (whether made or given before or after the

commencement of this Part) fixing the terms upon which a person other than the

Commonwealth or a State may make use of a design is inoperative with respect

to the making use of the design, after the commencement of this Part, under

sub-section (1), unless the agreement has been approved by the Minister or by

the Attorney-General of the State.

"(7) No action or proceeding for infringement lies in respect of the making

use of a design under sub-section (1).

"(8) The right to make use of a design under sub-section (1) includes the

right to sell articles to which the design has been applied in exercise of

that right and a purchaser of goods so sold, and a person claiming through

him, is entitled to deal with the articles as if the Commonwealth or State

were the owner of the design.

Declaration may be sought as to use of registered design

"40B. (1) An owner of a design who considers that the design has been made

use of under sub-section 40A (1) may apply to a prescribed court for a

declaration accordingly.

"(2) In a proceeding under sub-section (1) -

(a) the Commonwealth or the State concerned, as the case may be, shall be

the defendant; and

(b) where the design is a registered design, the Commonwealth or State may,

by way of counter-claim in the proceeding, apply for the rectification of the

register by the expunging of the entry of the registration of the design from

the register.

Forfeited articles

"40C. Nothing in this Part affects the rights of the Commonwealth or of a

State, or of a person deriving title directly or indirectly from the

Commonwealth or a State, to sell or use an article forfeited under a law of

the Common - wealth or the State.

Acquisition of designs by the Commonwealth

"40D. (1) The Governor-General may direct that a design the subject of an

application for registration, or a registered design, shall be acquired by the

Commonwealth from the owner, and, thereupon, the design or registered design,

and all rights in respect of the design or registered design, are, by force of

this section, transferred to and vested in the Commonwealth.

"(2) Notice of the acquisition shall be given to the owner and be published

in the Official Journal and the Gazette unless, in the case of the acquisition

of a design the subject of an application for registration, an order is in

force under section 40F in relation to the application.

"(3) The Commonwealth shall pay to the owner of the design, and, in the case

of the acquisition of a registered design, to all other persons appearing in

the register as having an interest in the design, such compensation as is

agreed upon between the Commonwealth and the owner or other persons, as the

case may be, or as, in default of agreement, is determined by a prescribed

court in an action for compensation against the Commonwealth.

Assignment of design to Commonwealth

"40E. (1) The owner of a design may assign to the Commonwealth his interest

in the design and in the monopoly obtained, or to be obtained, in the design.

"(2) The assignment and all covenants and agreements contained in the

assignment are valid and effectual notwithstanding any want of valuable

consideration and may be enforced by action or other appropriate proceeding in

the name of the Minister.

Prohibition of publication of information with respect to designs

"40F. (1) Subject to any directions of the Minister, the Registrar may, if

it appears to him to be necessary or expedient so to do in the interests of

the defence of the Commonwealth, by order in writing under his hand, prohibit

or restrict the publication of information with respect to the subject-matter

of an application for registration of a design, whether generally or to a

particular person or to persons included in a class of persons.

"(2) A person shall not, except in accordance with the written consent of

the Registrar, publish or communicate information in contravention of an order

made under sub-section (1).

Penalty -

(a) if the offence is prosecuted summarily - a fine not exceeding $500 or

imprisonment for a term not exceeding 6 months, or both; or

(b) if the offence is prosecuted upon indictment - a fine not exceeding

$10,000 or imprisonment for a term not exceeding 2 years, or both.

"(3) Where an order is in force under this section in relation to an

application for registration of a design, the application may be dealt with

under this Act but a design shall not be registered on that application.

"(4) Where -

(a) an order under this section in relation to an application for

registration of a design has been revoked; and

(b) at the date of the revocation of the order, the design would, but for

the operation of sub-section (3), have been registered,

the design shall be registered within one month after that date.

"(5) Nothing in this Act prevents the disclosure of information concerning a

design to a Department or authority of the Commonwealth for the purpose of

obtaining advice as to whether an order under this section should be made,

amended or revoked.

"PART VIB - JURISDICTION AND POWERS OF COURTS

Jurisdiction of prescribed courts

"40G. (1) Subject to sub-section (2), every prescribed court has

jurisdiction with respect to matters arising under this Act in respect of

which actions or proceedings may, under this Act, be instituted in a

prescribed court.

"(2) The jurisdiction conferred by sub-section (1) on the Supreme Court of a

Territory -

(a) to the extent that it relates to an action or proceeding for the

infringement of the monopoly in a registered design or to an application for

the rectification of the register made by virtue of section 32 - is conferred

to the extent that the Constitution permits; and

(b) in any other case - is conferred only in relation to an action or

proceeding instituted by a natural person who is resident in the Territory, or

a corporation that has its principal place of business in the Territory, at

the time of the institution of the action or proceeding.

"(3) The jurisdiction of a prescribed court under this section shall be

exercised by a single Judge.

"(4) The regulations may make provision for and in relation to the practice

and procedure of prescribed courts in actions or proceedings under this Act,

including provision prescribing the time within which any action or proceeding

may be instituted or any other act or thing may be done, and providing for the

extension of any such time.

Transfer of proceedings

"40H. (1) A prescribed court in which an action or proceeding has been

instituted under this Act may, if the court thinks fit, upon application of a

party made at any stage in the action or proceeding, by order, transfer the

action or proceeding to another prescribed court having jurisdiction to hear

and determine the action or proceeding.

"(2) Where an action or proceeding is transferred from a court in pursuance

of this section -

(a) all documents filed of record in that court shall be transmitted by the

Registrar or other proper officer of that court to the Registrar or other

proper officer of the court to which the action or proceeding is transferred;

and

(b) the court to which the action or proceeding is transferred shall proceed

as if the action or proceeding had been originally instituted in that court

and as if the same proceedings had been taken in that court as had been taken

in the court from which the action or proceeding was transferred.

Appeals

"40I. (1) Subject to sub-section (2), an appeal lies to the Federal Court of

Australia from a judgment or order of a prescribed court exercising

jurisdiction under this Act or a judgment or order of any other court in an

action or proceeding referred to in section 31.

"(2) Where the judgment or order of a prescribed court appealed from was

pronounced or made in the exercise of its jurisdiction to hear and determine

appeals from decisions of the Registrar, an appeal to the Federal Court of

Australia does not lie without leave of that Court.

"(3) An appeal lies to the High Court, with special leave of the High Court,

from a judgment or order referred to in sub-section (1).

"(4) Except as provided in the foregoing provisions of this section, no

appeal lies from a judgment or order referred to in sub-section (1).

Powers of prescribed courts

"40J. Upon the hearing of an appeal from a decision of the Registrar, the

prescribed court may -

(a) admit further evidence, either orally or upon affidavit or otherwise;

(b) permit the examination and cross-examination of witnesses, including

witnesses who gave evidence orally or upon affidavit or otherwise at the

hearing before the Registrar;

(c) order an issue of fact to be tried in such manner as it directs;

(d) affirm, reverse or modify the decision appealed from;

(e) give such judgment, or make such order, as in all the circumstances it

thinks fit, or refuse to make an order; and

(f) order a party to pay costs to another party.

"PART VIC - APPLICATIONS FOR REVIEW OF CERTAIN

DECISIONS BY ADMINISTRATIVE APPEALS TRIBUNAL

Applications for review

"40K. Applications may be made to the Administrative Appeals Tribunal for

review of -

(a) a direction by the Registrar given under section 25B or a refusal of the

Registrar under that section to give a direction;

(b) a decision of the Registrar under sub-section 27B (2) dismissing an

application for the restoration of the registration of a design; or

(c) a decision of the Registrar under section 27C.".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 25.

Governor-General may make regulations

25. Section 41 of the Principal Act is amended by omitting "the fees to be

paid under this Act and".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 26.

26. Section 42 of the Principal Act is repealed and the following sections

are substituted:

Fees

"42. (1) There are payable to the Registrar such fees as are prescribed in

respect of the doing of an act by the Registrar, or the lodging of a document,

under this Act.

"(2) Where, in accordance with the regulations, a fee is payable in respect

of the doing of an act by the Registrar under this Act, the Registrar shall

not do that act until the fee has been paid.

"(3) Where, in accordance with the regulations, a fee is payable in respect

of the doing of an act by a person other than the Registrar, the act shall be

deemed not to have been done until the fee has been paid.

"(4) Where, in accordance with the regulations, a fee is payable in respect

of the lodging of a document under this Act, the document shall be deemed not

to have been lodged until the fee has been paid.

Powers of Registrar

"42A. The Registrar may, for the purposes of this Act -

(a) summon witnesses;

(b) receive evidence on oath, whether orally or otherwise;

(c) require the production of documents or articles; and

(d) award costs against a party to proceedings before him.

Disobedience to summons an offence

"42B. (1) A person who has been summoned to appear as a witness before the

Registrar shall not, without lawful excuse, and after tender of reasonable

expenses, fail to appear in obedience to the summons.

"(2) A person who has been required by the Registrar to produce a document

or article shall not, without lawful excuse, and after tender of reasonable

expenses, fail to produce the document or article.

Penalty: $100.

Refusal to give evidence an offence

"42C. A person who appears before the Registrar as a witness shall not,

without lawful excuse, refuse to be sworn or to make an affirmation, or to

produce documents or articles, or to answer questions, that he is lawfully

required to produce or answer.

Penalty: $100.

Recovery of costs

"42D. Costs awarded by the Registrar may, in default of payment, be

recovered in a court of competent jurisdiction as a debt due by the person

against whom the costs were awarded to the person in whose favour they were

awarded.".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 27.

Registrar may recognize agents

27. Section 44 of the Principal Act is amended by omitting "industrial".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 28.

False representation that a design is registered

28. Section 45 of the Principal Act is amended by omitting from sub-section

(1) "Forty dollars" and substituting "$200".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 29.

29. After section 45 of the Principal Act the following sections are

inserted:

Exercise of discretionary power by Registrar

"46. Where a discretionary power is by this Act given to the Registrar, he

shall not exercise that power adversely to a person without giving to that

person an opportunity of being heard.

Objection to validity of design not to be taken in certain circumstances

"46A. Objection shall not be taken to an application for registration of a

design, and a registered design is not invalid, by reason only of the design

having been published or used before the priority date in respect of the

application for registration of the design, if the Registrar or the prescribed

court is satisfied that -

(a) the publication was made or the user took place without the knowledge

and consent of the applicant or owner, as the case may be;

(b) the subject of the publication or user was derived or obtained from the

applicant or owner; and

(c) if, before the priority date in respect of the application for

registration of the design, the applicant or owner became aware of the

publication or user, he made application for registration of the design with

all reasonable diligence after so becoming aware of the publication or user.

Notice of appeal to prescribed court to be given to Registrar, &c.

"46B. (1) Notice of an appeal under this Act to a prescribed court from a

decision of the Registrar shall be given to the Registrar.

"(2) The Registrar is entitled to appear and be heard upon the hearing of

the appeal and shall appear if so directed by the prescribed court.".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 30.

Exhibiting of designs at official or international exhibitions

30. Section 47 of the Principal Act is amended by omitting from sub-section

(1) "copyright" and substituting "monopoly".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 31.

31. Sections 48 and 49 of the Principal Act are repealed and the following

sections substituted:

Convention countries

"48. (1) The Governor-General may, with a view to the fulfilment of a

treaty, convention, arrangement or engagement between the Commonwealth and

another country, by Proclamation, declare that a country specified in the

Proclamation is a Convention country for the purposes of this Act.

"(2) The Governor-General may, by Proclamation, declare a part of the

Queen's dominions which has made satisfactory provision for the protection in

that part of designs to be a Convention country for the purposes of this Act.

"(3) Where the Governor-General, by Proclamation, declares that an

application for protection in respect of a design is, in accordance with the

terms of a treaty subsisting between 2 or more Convention countries,

equivalent to an application made in one of those Convention countries, the

first-mentioned application shall, for the purposes of this Act, be deemed to

have been made in that Convention country.

"(4) Where the Governor-General, by Proclamation, declares that an

application for protection in respect of a design is, in accordance with the

law of a Convention country, equivalent to an application made in that

Convention country, the first-mentioned application shall, for the purposes of

this Act, be deemed to have been made in that Convention country.

Applications under International Conventions

"49. (1) Where -

(a) an application for protection in respect of a design (in this section

referred to as the 'basic application') has been made in a Convention country;

and

(b) an application for registration of the design is lodged under this Act,

within a period of 6 months after the date on which the basic application was

made, by a person who is -

(i) the applicant in the Convention country;

(ii) the assignee of the applicant in the Convention country; or

(iii) the legal personal representative of the applicant in the Convention

country or of his assignee, the priority date in respect of the application

under this Act is the date of the making of the basic application.

"(2) For the purposes of sub-section (1), the date on which a basic

application was made in a Convention country is such date as the Registrar is

satisfied, by certificate of the official chief or head of the Designs Office

of the Convention country or otherwise, is the date on which the basic

application was made in the Convention country.

"(3) Where 2 or more applications for protection in respect of a design have

been made in one or more Convention countries, the period of 6 months referred

to in paragraph (1) (b) shall be reckoned from the date on which the earlier

or earliest of those applications was made.

"(4) An application to which sub-section (1) applies -

(a) shall be supported by a copy of the basic application, and of any other

related documents filed or deposited by the applicant in the Designs Office of

the Convention country in which the basic application was made, certified by

the official chief or head of that Office or otherwise verified to the

satisfaction of the Registrar; and

(b) in all other respects, shall be made, lodged and proceeded with in the

same manner as an ordinary application under this Act for the registration of

a design.

"(5) A copy of a document referred to in paragraph (4) (a) shall be lodged

-

(a) at the same time as the application to which sub-section (1) applies is

lodged;

(b) within 3 months after that time; or

(c) within such further period after that time as the Registrar allows.

"(6) If a copy of a document referred to in paragraph (4) (a) is in a

foreign language, a translation of the document, verified by declaration or

otherwise to the satisfaction of the Registrar, shall be annexed to the

document.

Withdrawn application not to be used as basic application in certain

circumstances

"50. Notwithstanding anything contained in section 49, where -

(a) an application for protection in respect of a design has been made in a

Convention country;

(b) the application has been withdrawn, abandoned or refused without

becoming open to public inspection;

(c) the application has not been used as the basis for claiming a right of

priority in a Convention country under the law of that country corresponding

to section 49; and

(d) a later application has been made by the same applicant for protection

in respect of that design in the Convention country in which the earlier

application was made,

the applicant may request the Registrar to disregard the earlier application

for the purposes of section 49 and, if he so requests -

(e) the earlier application shall be so disregarded; and

(f) neither the applicant nor any other person is capable of making use of

the earlier application as a basic application for the purposes of section

49.".

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 32.

Principal Act

PART III - AMENDMENTS OF THE COPYRIGHT ACT 1968

32. The Copyright Act 1968*3* is in this Part referred to as the Principal

Act .

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 33.

Consequential amendments

33. The Principal Act is amended as set out in the Schedule.

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 34.

Principal Act

PART IV - AMENDMENT OF THE PATENTS, TRADE MARKS,

DESIGNS AND COPYRIGHT ACT 1939

34. The Patents, Trade Marks, Designs and Copyright Act 1939*4* is in this

Part referred to as the Principal Act.

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 35.

International arrangements

35. Section 15 of the Principal Act is repealed.

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 36.

Transitional provision in relation to applications

PART V - TRANSITIONAL

36. (1) The amendments made by Parts II and III (other than the amendment

made by section 31), insofar as they apply in relation to applications for

registration of designs, apply in relation to such applications made after the

date fixed by Proclamation under sub-section 2 (3).

(2) The amendment made by section 31, insofar as it applies in relation to

applications for registration of designs, applies in relation to such

applications made after the date fixed by Proclamation under sub-section 2

(2).

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SECT. 37.

Transitional provision in relation to designs registered in accordance with

section 24A of Principal Act

37. Where, immediately before the date fixed by Proclamation under

sub-section 2 (3), a design registered under the Principal Act was a design

registered in accordance with section 24A of that Act, then, on and after that

date -

(a) that design shall be deemed to be a design to which section 25D of the

Designs Act 1906 applies; and

(b) the design that was the original registered design in relation to that

first-mentioned design shall be deemed to be the original design, within the

meaning of section 25D of the Designs Act 1906, in relation to that

first-mentioned design.

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - SCHEDULE

SCHEDULE Section 33

CONSEQUENTIAL AMENDMENTS OF COPYRIGHT ACT 1968

1. The following provisions of the Principal Act are amended by omitting

"copyright" (wherever

occurring) and substituting "monopoly":

Paragraphs 75 (a) and (b) and 76 (1) (b).

2. The Principal Act is further amended as set out in the following table:

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-- Provision Amendment

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-- Sub-section 8 (1) . . . . . . Omit "or of the Designs Act 1906-1968"

Heading to Division 8 of Omit "Industrial"

Part III

Sub-section 74 (2) . . . . . Omit, substitute the following sub-section:

"(2) In this Division -

(a) a reference to the scope of the monopoly in

a

registered design is a reference to the

aggregate

of the things that, by virtue of the Designs

Act

1906, the person registered as the owner, or

all

persons registered as owners, of the design

has,

or have, the exclusive right to do; and

(b) a reference to the scope of the monopoly in

a

registered design as extended to all associated

designs and articles is a reference to the

aggregate of the things that, by virtue of that

Act, the person registered as the owner, or all

persons registered as owners, of the design

would

have had the exclusive right to do if -

(i) when that design was registered, there had

at

the same time been registered every other

related

design capable of being registered by virtue of

section 25D of that Act, and the person

registered as the owner, or all persons registered as owners, of that design

had been registered as the owner,

or owners, of every such other related design;

and

(ii) that design, and every other related

design

capable of being registered by virtue of

section

25D of that Act, had been registered in respect

of all the articles to which it was capable of being

applied."

Sub-section 77 (2) . . . . . (a) Omit "fifteen", substitute "16"

(b) Omit "copyright in the corresponding

design",

substitute "monopoly in the corresonding

design"

Sub-section 77 (3) . . . . . Omit "copyright in that design", substitute

"monopoly in that design"

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--

DESIGNS AMENDMENT ACT 1981 No. 42 of 1981 - NOTES

NOTES

1. Act No. 42, of 1981; assented to 13 May 1981.

2. No. 4, 1906, as amended. For previous amendments, see No. 19, 1910; No.

14, 1912; Nos. 53 and 70, 1932; No. 36, 1933; Nos. 42 and 45, 1934; No. 80,

1950; No. 93, 1966; No. 108, 1967; No. 64, 1968; No. 216, 1973 (as amended by

No. 20, 1974); and No. 19, 1979.

3. No. 63, 1968, as amended. For previous amendments, see No. 216, 1973 (as

amended by No. 20, 1974); Nos. 37 and 91, 1976; No. 160, 1977; No. 19, 1979;

and No. 154, 1980.

4. No. 66, 1939, as amended. For previous amendments, see No. 32, 1940; No.

77 , 1946; No. 11, 1953; No. 216, 1973 (as amended by No. 20, 1974); and No.

91, 1976.

 

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