About Intellectual Property IP Training Respect for IP IP Outreach IP for… IP and... IP in... Patent & Technology Information Trademark Information Industrial Design Information Geographical Indication Information Plant Variety Information (UPOV) IP Laws, Treaties & Judgements IP Resources IP Reports Patent Protection Trademark Protection Industrial Design Protection Geographical Indication Protection Plant Variety Protection (UPOV) IP Dispute Resolution IP Office Business Solutions Paying for IP Services Negotiation & Decision-Making Development Cooperation Innovation Support Public-Private Partnerships AI Tools & Services The Organization Working with WIPO Accountability Patents Trademarks Industrial Designs Geographical Indications Copyright Trade Secrets WIPO Academy Workshops & Seminars IP Enforcement WIPO ALERT Raising Awareness World IP Day WIPO Magazine Case Studies & Success Stories IP News WIPO Awards Business Universities Indigenous Peoples Judiciaries Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions Economics Gender Equality Global Health Climate Change Competition Policy Sustainable Development Goals Frontier Technologies Mobile Applications Sports Tourism PATENTSCOPE Patent Analytics International Patent Classification ARDI – Research for Innovation ASPI – Specialized Patent Information Global Brand Database Madrid Monitor Article 6ter Express Database Nice Classification Vienna Classification Global Design Database International Designs Bulletin Hague Express Database Locarno Classification Lisbon Express Database Global Brand Database for GIs PLUTO Plant Variety Database GENIE Database WIPO-Administered Treaties WIPO Lex - IP Laws, Treaties & Judgments WIPO Standards IP Statistics WIPO Pearl (Terminology) WIPO Publications Country IP Profiles WIPO Knowledge Center WIPO Technology Trends Global Innovation Index World Intellectual Property Report PCT – The International Patent System ePCT Budapest – The International Microorganism Deposit System Madrid – The International Trademark System eMadrid Article 6ter (armorial bearings, flags, state emblems) Hague – The International Design System eHague Lisbon – The International System of Appellations of Origin and Geographical Indications eLisbon UPOV PRISMA UPOV e-PVP Administration UPOV e-PVP DUS Exchange Mediation Arbitration Expert Determination Domain Name Disputes Centralized Access to Search and Examination (CASE) Digital Access Service (DAS) WIPO Pay Current Account at WIPO WIPO Assemblies Standing Committees Calendar of Meetings WIPO Webcast WIPO Official Documents Development Agenda Technical Assistance IP Training Institutions COVID-19 Support National IP Strategies Policy & Legislative Advice Cooperation Hub Technology and Innovation Support Centers (TISC) Technology Transfer Inventor Assistance Program WIPO GREEN WIPO's Pat-INFORMED Accessible Books Consortium WIPO for Creators WIPO Translate Speech-to-Text Classification Assistant Member States Observers Director General Activities by Unit External Offices Job Vacancies Procurement Results & Budget Financial Reporting Oversight
Arabic English Spanish French Russian Chinese
Laws Treaties Judgments Browse By Jurisdiction

New Zealand

NZ109

Back

Designs Act 1953 (reprint as at 19 April 2011)

Reprint as at 19 April 2011

Designs Act 1953

Public Act 1953 No 65 Date of assent 26 November 1953

Contents

Page Title 3 1 Short Title and commencement 4 2 Interpretation 4 3 Commissioner of Designs 6 4 Assistant Commissioners of Designs and other officers 6

Registrable designs and proceedings for registration

5 Designs registrable under Act 7 6 Proprietorship of designs 8 7 Proceedings for registration 8 8 Registrationofsamedesigninrespectofotherarticles,etc 9 9 Provisions for ensuring secrecy in respect of designs 10

relevant for defence purposes 10 Provisions as to confidential disclosure, etc 11

Effect of registration, etc

11 Right given by registration 13

Note

Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this eprint.

Ageneraloutlineofthesechangesissetoutinthenotesattheendofthiseprint,togetherwith other explanatory material about this eprint.

This Act is administered by the Ministry of Justice.

12 Period of copyright 13 13 Exemption of innocent infringer from liability for 14 damages, etc 14 Compulsory licence in respect of registered design 14 15 Cancellation of registration 15

Use of registered designs for services of the Crown

16 Use of registered designs for services of the Crown 15 17 Rights of third parties in respect of Crown use 17 18 Reference of disputes as to Crown use 19 19 Special provisions as to Crown use during emergency 20

International arrangements

20 Orders in Council as to convention countries 21 21 Registration of design where application for protection in 22 convention country has been made 22 Extension of time for applications under section 21 in 23 certain cases 23 Protection of designs communicated under arrangements 24 with other countries 24 Regulations under section 22 or section 23 26

Register of designs, etc

25 Register of designs 26 26 Certificate of registration 26 27 Registration of assignments, etc 27 27A Application of Personal Property Securities Act 1999 28 28 Rectification of register by the Court 28 29 Power of Commissioner to correct errors 29 30 Inspection of registered designs 30 31 Information as to existence of copyright 31 32 Evidence of entries, documents, etc 31

Legal proceedings and appeals

33 Certificate of contested validity of registration 31 34 Remedy for groundless threats of infringement 32 proceedings 35 Appeal to High Court 33

Powers and duties of Commissioner

36 Exercise of discretionary powers of Commissioner 33 37 Commissioner may grant extension of time 33 37A Additional provisions for extending time limits 34 38 Costs and security for costs 35

2

39 Evidence before Commissioner 36 40 Recognition of agents 36 41 Commissioner may dispense with production of probate 37 or letters of administration in certain cases

Restoration of lapsed copyright in registered design

41A Restoration of lapsed copyright in registered design 38 41B Persons who may make request for restoration of 39 copyright 41C When request for restoration of copyright may be made 39 41D Commissioner’s consideration of whether prima facie 39 case has been made out for restoration 41E Notice of opposition and reasonable opportunity to be 40 heard 41F Order to be made on payment of unpaid fees 40

Restoration of design applications

41G Requestforrestorationofabandoneddesignapplication 41 41H Whenrequestforrestorationofapplicationmaybemade 42 41I Notice of opposition 43 41J Commissioner to determine matter 43

Offences

42 Offences in respect of designs required to be kept secret 44 43 Falsification of register, etc 44 44 Fine for falsely representing a design as registered 45

Supplemental

45 Hours of business 45 45A Closing of Patent Office at short notice 46 46 Regulations 46 47 Fees 48 48 Service of notices, etc, by post 48 49 Annual report 49 50 Application of Act to Tokelau 49 51 Saving 49 52 Repeals and savings 49

Schedule 51 Enactments repealed

An Act to consolidate and amend certain enactments relating to designs

s 1 Designs Act 1953 Reprinted as at19 April 2011
1 Short Title and commencement
(1) This Act may be cited as the Designs Act 1953.
(2) ThisActshallcomeintoforceonadaytobeappointedforthe
commencementthereofbytheGovernor-GeneralbyProclam
ation.
2 Interpretation
(1) In this Act, unless the context otherwise requires,—
article means any article of manufacture; and includes any
part of an article if that part is made and sold separately
assigneeincludesthepersonalrepresentativeofadeceasedas
signee; and references to the assignee of any person include
referencestothe assignee of the personalrepresentative or as
signee of that person
Commissioner means the Commissioner of Designs
Commonwealth means the British Commonwealth of Na
tions; and includes every territory for whose international
relations the Government of any country of the Common
wealth is responsible
convention country, in any provision of this Act, means an
entityforthetimebeingdeclaredbyanorderundersection20
to be a convention country for the purposes of that provision
copyright has the meaning assigned to it by subsection (1) of
section 11
Court means the High Court
design means features of shape, configuration, pattern, or
ornament applied to an article by any industrial process or
means, being features which in the finished article appeal
to and are judged solely by the eye; but does not include a
method or principle of construction or features of shape or
configuration which are dictated solely by the function which
the article to be made in that shape or configuration has to
perform
Government Department means any Department or instru
ment of the Executive Government of New Zealand
JournalmeansthePatentOfficeJournalpublishedundersub
section (1) of section 112 of the Patents Act 1953

prescribed means prescribed by regulations made under this Act

proprietor has the meaning assigned to it by section 6 registered proprietor means the person or persons for the time being entered in the register of designs as proprietor of the design

setof articles meansanumberofarticles ofthesamegeneral character ordinarily on sale or intended to be used together, to each of which the same design, or the same design with modifications orvariationsnot sufficient toalterthe character or substantially to affect the identity thereof, is applied.

(2)
Any reference in this Act to an article in respect of which a design is registered shall, in the case of a design registered in respect of a set of articles, be construed as a reference to any article of that set.
(3)
AnyquestionarisingunderthisActastowhetheranumberof articles constitute a set of articles shall be determined by the Commissioner; and notwithstanding anything in this Act any determinationoftheCommissionerunderthissubsectionshall be final.
(4)
For the purposes of subsection (1) of section 21 and of sec tion23 ,theexpressionpersonalrepresentative,inrelationto adeceasedperson, includesthelegalrepresentative ofthedeceased appointed in any country outside New Zealand.
(5)
In the case of an entity that is a convention country but is not a state, part of a state, or a territory for whose international relations a state is responsible,—

(a) a reference in this Act to—

(i)
application for protection in a country; or
(ii)
application for protection in respect of a coun

try,— mustbereadasareferencetoapplicationforprotection under the rules of the entity:

(b) areferenceinthisActtothelawofaconventioncountry must be read as a reference to the rules of the entity:

s 3 Designs Act 1953 Reprinted as at19 April 2011
(c) a reference in this Act to the Government of a conventioncountrymustbereadasareferencetothegoverning body of the entity. Compare: Registered Designs Act 1949, s 44 (UK); 1921-22 No 18 s 2 Section 2(1) convention country: substituted, on 14 October 1999, by section 2(2) of the Designs Amendment Act 1999 (1999 No 120). Section 2(1) Court: amended, on 1 April 1980, pursuant to section 12 of the Judicature Amendment Act 1979 (1979 No 124). Section 2(5): inserted, on 14 October 1999, by section 2(3) of the Designs Amendment Act 1999 (1999 No 120).
3 Commissioner of Designs (1) There may from time to time be appointed under the State Sector Act 1988 some fit person to be the Commissioner of Designs. (2) The person who at the commencement of this Act holds the office of Commissioner of Patents, Designs, and Trade Marks under the Patents, Designs, and Trade Marks Act 1921-22 shall be deemed to have been appointed as Commissioner of Designs under this Act. Compare: 1921-22 No 18 s 113 Section3(1): amended,on1January1963,bysection77(1)oftheStateServices Act 1962 (1962 No 132). Section 3(1): amended, on 1 April 1988, pursuant to section 88(2) of the State Sector Act 1988 (1988 No 20).
4 Assistant Commissioners of Designs and other officers (1) There may from time to time be appointed under the State Sector Act 1988— (a) one or more fit persons to be Assistant Commissioners of Designs: (b) such other officers and employees as may be necessary for carrying out the purposes of this Act. (2) EveryAssistantCommissionerofDesignssoappointed,while he remains in office, shall have and may exercise, subject to the control and direction of the Commissioner, all the powers, duties, and functions of the Commissioner, and every reference in this or any other Act to the Commissioner shall, so far as may be necessary for the purpose of giving effect to the

provisionsofthissection,bedeemedtoincludeareferenceto every Assistant Commissioner of Designs.

(3) The person who at the commencement of this Act holds the office of Deputy Commissioner of Patents, Designs, and TradeMarksunderthePatents,Designs,andTradeMarksAct 1921-22shall be deemedto have beenappointed anAssistant Commissioner of Designs under this Act. Compare: 1921-22 No 18 ss 114, 115 Section4(1): amended,on1January1963,bysection77(1)oftheStateServices Act 1962 (1962 No 132). Section 4(1): amended, on 1 April 1988, pursuant to section 88(2) of the State Sector Act 1988 (1988 No 20).

Registrable designs and proceedings forregistration

5 Designs registrable under Act

(1)
Subject to the following provisions of this section, a design may, upon application made by the person claiming to be the proprietor,beregisteredunderthisActinrespectofanyarticle or set of articles specified in the application.
(2)
SubjecttotheprovisionsofthisAct,adesignshallnotberegistered thereunder unless it is new or original and in particular shall not be so registered in respect of any article if it is the same as a design which before the date of the application for registration has been registered or published in New Zealand inrespectofthesameoranyotherarticleordiffersfromsucha designonlyinimmaterialdetailsorinfeatureswhicharevariants commonly used in the trade.
(3)
Regulations made under this Act may provide for excluding fromregistrationunderthisActdesignsforsucharticles,being articles which are primarily literary or artistic in character, as may be specified in the regulations. Compare: Registered Designs Act 1949,s1 (UK); 1921-22 No 18 ss 2, 52
s 6 Designs Act 1953 Reprinted as at19 April 2011
6 (1) Proprietorship of designs Subjecttotheprovisionsofthissection,theauthorofadesign shall be treated for the purposes of this Act as the proprietor of the design: provided that where the design is executed by the author for another person for good consideration, that other person shall be treated for the purposes of this Act as the proprietor.
(2) Where a design, or the right to apply a design to any article, becomes vested, whether by assignment, transmission, or operationoflaw,inanypersonotherthantheoriginalproprietor, either alone or jointly with the original proprietor, that other person, or, as the case may be, the original proprietor and that other person, shall be treated for the purposes of this Act as the proprietor of the design or as the proprietor of the design in relation to that article.
Compare: Registered Designs Act 1949, s 2 (UK); 1921-22 No 18 s 52(1)
7 (1) Proceedings for registration An application for the registration of a design shall be made inthe prescribedform and shallbe filed atthe PatentOffice in the prescribed manner.
(2) Forthepurposeofdecidingwhetheradesignisnewororiginal theCommissionermaymakesuchsearches,ifany,ashethinks fit.
(3) The Commissioner may refuse any application for the registration of a design or may register the design in pursuance of the application without modification or subject to such modifications as he thinks fit.
(4) An application which, owing to any default or neglect on the part of the applicant, has not been completed so as to enable registration to be effected within such time as may be prescribed shall be deemed to be abandoned.
(5) Except as otherwise expressly provided by this Act, a design when registered shall be registered as of the date on which the application for registration was made, or such other date

(whether earlier or later than that date) as the Commissioner may in any particular case direct: provided that no proceedings shall be taken in respect of any infringement committed before the date on which the certificate of registration of the design under this Act is issued.

(6) AnappealtotheCourtshallliefromanydecisionoftheCommissioner under subsection (3). Compare: Registered Designs Act 1949, s 3 (UK); 1921-22 No 18 s 52

8 Registrationofsamedesigninrespectofotherarticles,etc

(1) Where the registered proprietor of a design registered in respect of any article makes an application—

(a)
forregistration,inrespectofoneormoreotherarticles, of the registered design; or
(b)
for registration, in respect of the same or one or more other articles, of a design consisting of the registered designwithmodificationsorvariationsnotsufficientto alter the character or substantially to affect the identity thereof,—

the application shall not be refused and the registration made on that application shall not be invalidated by reason only of the previous registration or publication of the registered design: providedthattheperiodofcopyrightinadesignregisteredby virtue of this section shall not extend beyond the expiration of the original and any extended period of copyright in the original registered design.

(2) Whereanypersonmakesanapplicationfortheregistrationof a design in respect of any article and either—

(a)
that design has been previously registered by another person in respect of some other article; or
(b)
the design to which the application relates consists of a design previously registered by another person in respect of the same or some other article with modificationsorvariationsnotsufficienttoalterthecharacteror substantially to affect the identity thereof,—

then,if atany time while the application is pending the applicantbecomestheregisteredproprietorofthedesignpreviously registered,theforegoingprovisionsofthissectionshallapply

9

s 9 Designs Act 1953 Reprinted as at19 April 2011
as if at the time of making the application the applicant had
been the registered proprietor of that design.
Compare: Registered Designs Act 1949, s 4 (UK); 1921-22 No 18 s 53; 1939 No 26 s 69
9 Provisions for ensuring secrecy in respect of designs
relevant for defence purposes
(1) Where, either before or after the commencement of this Act,
an application for the registration of a design has been made,
and it appears to the Commissioner that the design is one of
a class notified to him by the Minister of Defence as relevant
fordefencepurposes,orisintheopinionoftheCommissioner
likely to be valuable for defence purposes, he may give direc
tions for prohibiting or restricting the publication of informa
tion with respect to the design, or the communication of such
information to any person or class of persons specified in the
directions.
(2) Regulations may be made under this Act for securing that the
representation or specimen of a design in the case of which
directions are given under this section shall not be open to
inspection at the Patent Office during the continuance in force
of the directions.
(3) Where the Commissioner gives any such directions as afore
said, he shall give notice of the application and of the direc
tions to the Minister of Defence, and thereupon the following
provisions shall have effect, that is to say:
(a) theMinisterofDefenceshall,uponreceiptofthenotice,
considerwhetherthepublicationofthedesignwouldbe
prejudicialtothedefenceofNewZealand,and,unlessa
noticeunderparagraph(c)haspreviouslybeengivenby
the Minister of Defence to the Commissioner, shall re
considerthatquestionbeforetheexpirationof9months
fromthedateoffilingof theapplicationforregistration
ofthedesignandatleastonceineverysubsequentyear:
(b) for the purpose aforesaid, the Minister of Defence may,
at any time after the design has been registered or, with
the consent of the applicant, at any time before the de
sign has been registered, inspect the representation or

specimen of the design filed in pursuance of the application:

(c)
ifuponconsiderationofthedesignatanytimeitappears to the Minister of Defence that the publication of the design would not, or would no longer, be prejudicial to the defence of New Zealand, the Minister of Defence shall give notice to the Commissioner to that effect:
(d)
onthereceiptofanysuchnoticetheCommissionershall revoke the directions and may, subject to such conditions, if any, as he thinks fit, extend the time for doing anything required or authorised to be done by or under this Act in connection with the application or registration, whether or not that time has previously expired.

(4) NopersonresidentinNewZealandshall,exceptundertheauthorityofawrittenpermitgrantedbyoronbehalfoftheCommissioner, make or cause to be made any application outside New Zealand for the registration of a design of any class prescribed for the purposes of this subsection unless—

(a)
an application for registration of the same or substantially the same design has been made in New Zealand not less than 6 weeks before the application outside New Zealand; and
(b)
either no directions have been given under subsection

(1) in relation to the application in New Zealand or all

such directions have been revoked: provided that this subsection shall not apply in relation to a design for which an application for protection has first been filed in a country outside New Zealand by a person resident outside New Zealand.

Compare: Registered Designs Act 1949, s 5 (UK)

10 Provisions as to confidential disclosure, etc

(1)
An application for the registration of a design shall not be re-fused,andtheregistrationofadesignshallnotbeinvalidated, by reason only of—
(a)
the disclosure of the design by the proprietor to any other person in such circumstances as would make it contrary to good faith for that other person to use or publish the design; or
(b)
the disclosure of the design in breach of good faith by any person other than the proprietor of the design; or
(c)
in the case of a new or original textile design intended forregistration,theacceptanceofafirstandconfidential order for goods bearing the design.
(2)
An application for the registration of a design shall not be re-fused,andtheregistrationofadesignshallnotbeinvalidated, by reason only—
(a)
that a representation of the design, or any article to which the design hasbeenapplied, hasbeendisplayed, with the consent of the proprietor of the design, at an international or industrial exhibition declared as such by the Commissioner by notice in the Journal, whether the exhibition is held in New Zealandor elsewhere; or
(b)
that after any such display as aforesaid, and during the period of the exhibition, a representation of the design or any such article as aforesaid has been displayed by any person without the consent of the proprietor; or
(c)
that a representation of the design has been published in consequence of any such display as is mentioned in paragraph (a),—

iftheapplicationforregistrationofthedesignismadenotlater than 6 months after the date ofthe opening of the exhibition.

(3) An application for the registration of a design shall not be re-fused,andtheregistrationofadesignshallnotbeinvalidated, byreasononlyofthecommunicationofthedesignbytheproprietor thereof to a Government Department or to any person authorised by a Government Department to consider the merits of the design, or of anything done in consequence of such a communication. Compare: Registered Designs Act 1949, s 6 (UK);1921-22 No18 ss 58, 63 Section 10(2)(a): amended, on 2 September 1996, by section 2 of the Designs Amendment Act 1996 (1996 No 118). Section10(2)(a): amended,on12November1980,bysection5(2)oftheShop Trading Hours Amendment Act 1980 (1980 No 36).

Effect of registration, etc

11 Right given by registration
(1) The registration of a design under this Act shall give to the
registered proprietor the copyright in the design, that istosay,
the exclusive right in New Zealand to make or import for sale
or for use for the purposes of any trade or business, or to sell,
hire, or offer for sale or hire, any article in respect of which
the design is registered, being an article to which the regis
tered design or a design not substantially different from the
registered design has been applied, and to make anything for
enabling any such article to be made as aforesaid, whether in
New Zealand or elsewhere.
(2) Subject to the provisions of this Act and of subsection (3) of
section 7 of the Crown Proceedings Act 1950, the registration
of a design shall have the same effect against the Crown as it
has against a subject.
Compare: Registered Designs Act 1949, s 7 (UK); 1921-22 No 18 ss 56(1), 66
12 Period of copyright
(1) Copyrightinaregistereddesignshall,subjecttotheprovisions
of this Act, subsist for a period of 5 years from the date of
registration.
(2) The Commissioner shall extend the period of copyright for a
second period of 5 years from the expiration of the original
period, and for a third period of 5 years from the expiration of
thesecondperiod,ifanapplicationforextensionoftheperiod
ofcopyrightforthesecondperiodorthirdperiodismadeinthe
prescribed manner and the prescribed fee is also paid before
theexpirationoftheoriginalperiodorthesecondperiod,asthe
case may be, or if such application is made and the fee is paid
withinsuchfurtherperiod(notexceeding6months)asmaybe
specified in a request to the Commissioner and accompanied
by the prescribed additional fee.
(3) Subsection (2) is subject to sections 41A to 41F (which pro
vide for the restoration of lapsed copyright in a registered de
sign).
Compare: Registered Designs Act 1949, s 8 (UK); 1921-22 No 18 s 56
Section 12(2): substituted, on 20 October 1972, by section 2 of the Designs Amendment Act 1972 (1972 No 53).
s 13 Designs Act 1953 Reprinted as at19 April 2011
Section 12(2): amended, on 19 April 2011, by section 4(1) of the Designs Amendment Act 2010 (2010 No 15).
Section 12(3): added, on 19 April 2011, by section 4(2) of the Designs Amendment Act 2010 (2010 No 15).
13 Exemption of innocent infringer from liability for
damages, etc
(1) Inproceedingsfortheinfringementofcopyrightinaregistered
design, damages or account of profits shall not be awarded
againstadefendantwhoprovesthatatthedateoftheinfringe
ment he was not aware and had no reasonable ground for sup
posing that the design was registered in New Zealand; and a
person shall not be deemed to have been aware or to have had
any reasonable ground for supposing as aforesaid by reason
only of the marking of an article with the word registered or
any abbreviation thereof, or any word or words expressing or
implying that the design applied to the article has been regis
tered,unlessthewordorwordsareaccompaniedbythewords
New Zealand or the letters NZ and by the number of the de
sign.
(2) Nothing in this section shall affect the power of the Court
to grant an injunction in any proceedings for infringement of
copyright in a registered design.
Compare: Registered Designs Act 1949, s 9 (UK); 1921-22 No 18 s 38
14 Compulsory licence in respect of registered design
(1) Atanytimeafteradesignhasbeenregisteredanypersoninter
ested may apply to the Commissioner for the grant of a com
pulsory licence in respect of the design on the ground that the
designisnotappliedinNewZealandbyanyindustrialprocess
or means to the article in respect of which it is registered to
suchanextentasisreasonableinthecircumstancesofthecase;
andtheCommissionermaymakesuchorderontheapplication
as he thinks fit.
(2) An order for the grant of a licence shall, without prejudice to
any other method of enforcement, have effect as if it were a
deedexecutedbytheregisteredproprietorandallotherneces
sary parties, granting a licence in accordance with the order.
(3)
No order shall be made under this section which would be at variancewithanytreaty,convention,arrangement,orengagement applying to New Zealand and any convention country.
(4)
An appeal to the Court shall lie from any order of the Commissioner under this section. Compare: Registered Designs Act 1949, s 10 (UK); 1921-22 No 18 s 62

15 Cancellation of registration

(1)
TheCommissionermay,uponarequestmadeintheprescribed manner by the registered proprietor, cancel the registration of a design.
(2)
Atanytimeafteradesignhasbeenregisteredanypersoninterested may apply to the Commissioner for the cancellation of theregistrationofthedesignonthegroundthatthedesignwas not,atthedateoftheregistrationthereof,newororiginal,oron any other ground on which the Commissioner could have refusedtoregisterthedesign;andtheCommissionermaymake such order on the application as he thinks fit.
(3)
An appeal to the Court shall lie from any order of the Commissioner under subsection (2). Compare: Registered Designs Act 1949, s 11 (UK); 1921-22 No 18 s 61

Use of registered designs for services of the Crown

16 Use of registered designs for services of the Crown

(1)
Notwithstanding anything in this Act, any Government Department, and any person authorised in writing by a Government Department, may use any registered design for the services of the Crown in accordance with the following provisions of this section.
(2)
If and so far as the design has, before the date of registration thereof, been duly recorded by or applied by or on behalf of a Government Department otherwise than in consequence of the communication of the design directly or indirectly by the registeredproprietororanypersonfromwhomhederivestitle, anyuseofthedesignbyvirtueofthissectionmaybemadefree of any royalty or other payment to the registered proprietor.
(3)
If and so far as the design has not been so recorded or appliedasaforesaid,anyuseofthedesignmadebyvirtueofthis section at any time after the date of registration thereof, or in consequenceofanysuchcommunicationasaforesaid,shallbe made upon such terms as may be agreed upon, either before oraftertheuse, betweentheGovernment Department and the registered proprietor with the approval of the Minister of Finance,orasmayindefaultofagreementbedeterminedbythe Court on a reference under section 18.
(4)
TheauthorityofaGovernmentDepartmentinrespectofadesign may be given under this section either before or after the designisregisteredandeitherbeforeoraftertheactsinrespect of which the authority is given are done, and may be given to any person whether or not he is authorised directly or indirectly by the registered proprietor to use the design.
(5)
Where any use of a design is made by or with the authority of a Government Department under this section, then, unless it appears to the Department that it would be contrary to the public interest so to do, the Department shall notify the registered proprietor as soon as practicable after the use is begun, and furnish him with such information as to the extent of the use as he may from time to time require.
(6)
For the purposes of this section and of section 17, any use of adesignforthesupplytotheGovernmentofanycountryoutsideNewZealand, inpursuance ofany agreementorarrangementbetweenHerMajesty’sGovernmentinNewZealandand theGovernmentofthatcountry,ofarticlesrequiredforthedefenceofthatcountryshallbedeemedtobeauseofthedesign fortheservicesoftheCrown;andthepowerofaGovernment Department or a person authorised by a Government Department underthis section to use a designshall include power—
(a)
to sell such articles to the Government of any country in pursuance of any such agreement or arrangement as aforesaid; and
(b)
toselltoanypersonanyarticlesmadeintheexerciseof thepowersconferredbythissectionwhicharenolonger required for the purpose for which they were made.
(7)
The purchaser of any articles sold in the exercise of powers conferred by this section, and any person claiming through

him, shall have power to deal with them in the same manner as if the rights in the registered design were held on behalf of Her Majesty. Compare: Registered Designs Act 1949, First Schedule, para 1 (UK)

17 Rights of third parties in respect of Crown use

(1) In relation to any use of a registered design, or a design in respectofwhichanapplicationforregistrationispending,made for the services of the Crown—

(a)
byaGovernmentDepartmentorapersonauthorisedby a Government Department under section 16; or
(b)
bytheregisteredproprietororapplicantforregistration

to the order of a Government Department,— theprovisionsofanylicence,assignment,oragreementmade, whether before or after the commencement of this Act, between the registered proprietor or applicant for registration or any person who derives title from him or from whom he derivestitleandanypersonotherthanaGovernmentDepartment shallbeofnoeffectsofarasthoseprovisionsrestrictorregulate the use of the design, or any model, document, or informationrelatingthereto,orprovideforthemakingofpayments in respect of any such use, or calculated by reference thereto; andthereproductionorpublicationofanymodelordocument inconnectionwiththesaiduseshallnotconstituteaninfringement of any copyright subsisting in the model or document.

(2)
Where an exclusive licence granted otherwise than for royaltiesorotherbenefitsdeterminedbyreferencetotheuseofthe design is in force under the registered design, then,—
(a)
in relation to any use of the design which, but for the provisions of thissectionandsection16,wouldconsti tute an infringement of the rights of the licensee, sub section (3) of section 16 shall have effect as if for the referenceto the registered proprietorthere were substituted a reference to the licensee; and
(b)
in relation to any use of the design by the licensee by virtue of an authority given under section 16, that sec tionshallhaveeffectasifsubsection(3)ofthatsection were omitted.
(3)
Subject to the provisions of subsection (2), where the registered design or the right to apply for or obtain registration of the design has been assigned to the registered proprietor in consideration of royalties or other benefits determined by reference to the use of the design, then,—
(a)
in relation to any use of the design by virtue of section 16 , subsection (3) of that section shall have effect as if thereferencetotheregisteredproprietorincludedareferencetotheassignor,andanysumpayablebyvirtueof that subsection shall be divided between the registered proprietor and the assignor in such proportion as may be agreed upon between them or as may in default of agreement be determined by the Court on a reference under section 18; and
(b)
inrelationtoanyuseofthedesignmadefortheservices oftheCrownbytheregisteredproprietortotheorderof aGovernmentDepartment,subsection(3)of section16 shall have effect as if that use were made by virtue of an authority given under that subsection.
(4)
Where, under subsection (3) of section 16, payments are re quiredtobemadebyaGovernmentDepartmenttoaregistered proprietor in respect of any use of a design, any person being the holder of an exclusive licence under the registered design (notbeingsuchalicenceasismentionedinsubsection(2))authorising him to make that use of the design shall be entitled to recover from the registered proprietor such part (if any) of those payments as may be agreed upon between that person and the registered proprietor, or as may in default of agree ment be determined by the Court under section 18 to be just having regard to any expenditure incurred by that person—
(a)
in developing the said design; or
(b)
in making payments to the registered proprietor, other than royalties or other payments determined by reference to the use of the design, in consideration of the licence,—

andif,atanytimebeforetheamountofanysuchpaymenthas been agreed upon between the Government Department and theregisteredproprietor,thatpersongivesnoticeinwritingof hisinteresttotheDepartment,anyagreementastotheamount ofthatpaymentshallbeofnoeffectunlessitismadewithhis consent.

(5) In this paragraph exclusive licence means a licence from the registered proprietor which confers on the licensee, or on the licenseeandpersonsauthorisedbyhim,totheexclusionofall other persons (including the registered proprietor), any right in respect of the registered design. Compare: Registered Designs Act 1949, First Schedule, para 2 (UK)

18 Reference of disputes as to Crown use

(1)
Any dispute as to the exercise by a Government Department or a person authorised by a Government Department of the powers conferred by section 16, or as to terms for the use of a design for the services of the Crown thereunder,or as to the right of any person to receive any part of a payment made in pursuanceofsubsection(3)ofthatsection,maybereferredto theCourtbyeitherpartytothedisputeinsuchmannerasmay be prescribed by rules of Court.
(2)
In any proceedings under this section to which a Government Department is a party, the Department may,—
(a)
iftheregisteredproprietorisapartytotheproceedings, apply for cancellation of the registration of the design uponanygrounduponwhichtheregistrationofadesign may be cancelled on an application to the Court under section 28:
(b)
in any case, put in issue the validity of the registration of the design without applying for its cancellation.
(3)
Ifinsuchproceedingsasaforesaidanyquestionariseswhether adesignhasbeenrecordedorappliedasmentionedin section 16 , and the disclosure of any document recording the design, or of any evidence of the application thereof, would in the opinionoftheDepartmentbeprejudicialtothepublicinterest, the disclosure may be made confidentially to counsel for the otherpartyortoanindependentexpertmutuallyagreedupon.
(4)
In determining under this paragraph any dispute between a Government Department and any person as to terms for the use of a design for the services of the Crown, the Court shall haveregard toany benefitorcompensationwhichthat person or any person from whom he derives title may have received,

19

or may be entitled to receive, directly or indirectly from any Government Department inrespect of the design in question.

(5) In any proceedings under this section the Court may at any time order the whole proceedings or any question or issue of factarisingthereintobereferredtoaspecialorofficialreferee oranarbitratoronsuchtermsastheCourtmaydirect;andreferencestotheCourtintheforegoingprovisionsofthissection shall be construed accordingly. Compare: Registered Designs Act 1949, First Schedule, para 3 (UK)

19 Special provisions as to Crown use during emergency

(1) During any period of emergency within the meaning of this sectionthepowersexercisableinrelationtoadesignbyaGovernmentDepartment,orapersonauthorisedbyaGovernment Department under section 16, shall include power to use the design for any purpose which appears to the Department necessary or expedient—

(a)
for the efficient prosecution of any war in which Her Majesty may be engaged; or
(b)
for the maintenance of supplies and services essential to the life of the community; or
(c)
for securing a sufficiency of supplies and services essential to the well-being of the community; or
(d)
for promoting the productivity of industry, commerce, and agriculture; or
(e)
for fostering and directing exports and reducing imports, or imports of any classes, from all or any countries and for redressing the balance of trade; or
(f)
generally for ensuring that the whole resources of the communityareavailableforuse,andareused,inamanner bestcalculated to serve the interests of thecommunity; or
(g)
for assisting the relief of suffering and the restoration anddistributionofessentialsuppliesandservicesinany partoftheCommonwealthoroftheRepublicofIreland or in any foreign countries that are in grave distress as a result of war; or
(h)
forprovidingorsecuringsuppliesandservicesrequired forthedefenceofanypartoftheCommonwealthorfor
the maintenance or restoration of peace and security in anypartoftheworld,orforanymeasuresarisingoutof a breach or apprehended breach of peace in any part of the world; or
(i)
forpreventingsuppliesorservicesbeingdisposedofin a manner prejudicial to the defence of any part of the Commonwealth or to peace and security in any part of the world or to any such measures as aforesaid,—

and any reference in sections 16 to 18 to the services of the Crown shall be construed as including a reference to the purposes aforesaid.

(2)
Inthissectiontheexpressionperiodofemergencymeansany periodbeginningonsuchdateasmaybedeclaredbyOrderin CouncilpublishedintheGazette tobethecommencement,and ending on such date as may be so declared to be the termination,ofaperiodofemergencyforthepurposeofthissection.
(3)
All Orders in Council made under this section shall be laid before Parliament within 28 days after the date of the making thereof if Parliament is then in session, and, if not, shall be laid before Parliament within 28 days after the date of the commencement of the next ensuing session. Compare: Registered Designs Act 1949, First Schedule, para 4 (UK)

International arrangements

20 Orders in Council as to convention countries Forthepurposeofgivingeffecttoanyinternationalagreement orarrangementtowhichNewZealandisapartyorthatapplies toNewZealand,theGovernor-GeneralmaybyOrderinCouncil declare that any entity specified in the order that is a party totheagreementorarrangementortowhichtheagreementor arrangementapplies(whetherastate,partofastate,aterritory for whose international relations a state is responsible, a political union,aninternational organisation,orany otherentity) is, for the purposes of all or any of the provisions of this Act, a convention country. Section 20: substituted, on 14 October 1999, by section 2(1) of the Designs

Amendment Act 1999 (1999 No 120).

s 21 Designs Act 1953 Reprinted as at19 April 2011
21 Registration of design where application for protection in
convention country has been made
(1) An application for registration of a design in respect of which
protection has been applied for in a convention country may
be made in accordance with the provisions of this Act by the
person by whom the application for protection was made or
his personal representative or assignee:
provided that no application shall be made by virtue of this
section after the expiration of 6 months from the date of the
application for protection in a convention country or, where
more than one such application for protection has been made,
from the date of the first application.
(2) A design registered on an application made by virtue of this
section shall be registered as of the date of the application for
protection in the convention country, or where more than one
such application for protection has been made, the date of the
first such application:
provided that no proceedings shall be taken in respect of any
infringement committed before the date on which the certifi
cate of registration of the design under this Act is issued.
(3) An application for the registration of a design made by virtue
of this section shall not be refused, and the registration of a
design on such an application shall not be invalidated, by rea
sononlyoftheregistrationorpublicationofthedesigninNew
Zealand during the period specified in the proviso to subsec
tion (1) as that within which the application for registration
may be made.
(4) Where a person has applied for protection for a design by an
application which,—
(a) in accordance with the terms of a treaty subsisting be
tween 2 or more convention countries, is equivalent to
an application duly made in any one of those conven
tion countries; or
(b) in accordance with the law of any convention country,
is equivalent to an application duly made in that con
vention country,—
he shall be deemed for the purposes of this section to have
applied in that convention country.

(5) For the purposes of this section, where more than one application for protection in a convention country has been made, the first application may be disregarded and the second application shall be substituted for the first application where—

(a)
the first application was made in or in respect of the same convention country and by the same applicant as the second application; and
(b)
not later than the date of filing of the second application, the first application was unconditionally withdrawn, abandoned, or refused; and
(c)
the first application had not been made available to the publicinNewZealandorelsewherebeforeitsunconditional withdrawal, abandonment, or refusal; and
(d)
no rights remain outstanding in respect of the first application; and
(e)
the first application has not served as a basis for claiming a right of priority in relation to another application in any country.

Compare: Registered Designs Act 1949, s 14 (UK); 1939 No 26 s 55

Section 21(5): inserted, on 2 September 1996, by section 3 of the Designs Amendment Act 1996 (1996 No 118).

22 Extension of time for applications under section 21 in certain cases

(1)
If the Governor-General is satisfied that provision substantially equivalent to the provision to be made by or under this sectionhasbeenorwillbemadeunderthelawofanyconvention country, he may, by Order in Council, make regulations empoweringthe Commissionertoextendthe timeformaking application under subsection (1) of section 21 for registration ofadesigninrespectofwhichprotectionhasbeenappliedfor in that country in any case where the period specified in the proviso to that subsection expires during a period prescribed by the regulations.
(2)
Regulations made under this section—

(a) may, where any agreement or arrangement has been made between Her Majesty’s Government in New ZealandandtheGovernmentoftheconventioncountry for the supply or mutual exchange of information or

23

articles, provide, either generally or in any class of case specified in the regulations, that an extension of time shall not be granted under this section unless the design has been communicated in accordance with the agreement or arrangement:

(b)
may,eithergenerallyorinanyclassofcasespecifiedin the regulations, fix the maximum extension which may be granted under this section:
(c)
mayprescribeorallowanyspecialprocedureinconnection with applications made by virtue of this section:
(d)
may empower the Commissioner to extend, in relation toanapplicationmadebyvirtueofthissection,thetime limitedbyorundertheforegoingprovisionsofthisAct for doing any act, subject to such conditions, if any, as may be imposed by or under the regulations:
(e)
may provide for securing that the rights conferred by registrationonanapplicationmadebyvirtueofthissectionshallbesubjecttosuchrestrictionsorconditionsas maybespecifiedbyorundertheregulationsandinparticular to restrictions and conditions for the protection of persons (including persons acting on behalf of Her Majesty)who,otherwisethanastheresultofacommunicationmadeinaccordancewithsuchanagreementor arrangement as is mentioned in paragraph (a) , and beforethedateoftheapplicationinquestionorsuchlater date as may be allowed by the regulations, may have importedormadearticlestowhichthedesignisapplied or may havemade anapplicationforregistration of the design.

Compare: Registered Designs Act 1949, s 15 (UK); 1943 No 6 s 5

23 Protection of designs communicated under arrangements with other countries

(1)
Subject to the provisions of this section, regulations may be made under this Act for securing that, where a design has been communicated in accordance with an agreement or arrangement made between Her Majesty’s Government in New ZealandandtheGovernmentofanyothercountryforthesupply or mutual exchange of information or articles,—
(a)
anapplicationfortheregistrationofthedesignmadeby the person from whom the design was communicated, or his personal representative or assignee, shall not be prejudiced, and the registration of the design in pursuance of such an application shall not be invalidated, by reason only that the design has been communicated as aforesaid or that in consequence thereof—
(i)
the design has been published or applied; or
(ii)
an application for registration of the design has beenmadebyanyotherperson,orthedesignhas been registered on such an application:
(b)
any application for the registration of a design made in consequenceofsuchacommunicationasaforesaidmay berefusedandanyregistrationofadesignmadeonsuch an application may be cancelled.
(2)
Regulations made under subsection (1) may provide that the publicationorapplicationofadesign,orthemakingofanyapplication for registration thereof, shall, in such circumstances and subject to such conditions or exceptions as may be prescribed by the regulations, be presumed to have been in consequenceofsuchacommunicationasismentionedinthatsubsection.
(3)
The power to make regulations under this section, so far as it is exercisable for the benefit of persons from whom designshave beencommunicatedto HerMajesty’sGovernment inNewZealandbytheGovernmentofanyothercountry,shall only be exercised if and to the extent that the Governor-Generalissatisfiedthatsubstantiallyequivalentprovisionhasbeen orwillbemadeunderthelawofthatcountryforthebenefitof personsfromwhomdesignshavebeencommunicated byHer Majesty’s Government in New Zealand to the Government of that country.
(4)
References in subsection (3) to the communication of a design to or by Her Majesty’s Government in New Zealand or theGovernmentofanyothercountryshallbeconstruedasincluding references to the communication of the design by or to any person authorised in that behalf by the Government in question. Compare: Registered Designs Act 1949, s 16 (UK); 1946 No 32 s 4
s 24 Designs Act 1953 Reprinted as at19 April 2011
24 Regulations under section 22 or section 23
Any regulations made under section 22 or section 23, and any
order made, direction given, or other action taken under the
regulations by the Commissioner, may be made, given, or
taken so as to have effect as respects things done or omitted
to be done on or after such date, whether before or after the
comingintooperationoftheregulationsorofthisAct, asmay
be specified in the regulations.
Compare: Registered Designs Act 1949, s 37(2) (UK); 1943 No 6 s 7
Register of designs, etc
25 Register of designs
(1) There shall be kept at the Patent Office under the control of
the Commissioner a register of designs, in which there shall
beenteredthenamesandaddressesofproprietorsofregistered
designs, notices of assignments and of transmissions of regis
tered designs, and such other matters as may be prescribed or
as the Commissioner may think fit.
(2) Subject to the provisions of this Act and to regulations made
thereunder, the register of designs shall, at all convenient
times, be open to inspection by the public; and certified
copies sealed with the seal of the Patent Office of any entry
in the register shall be given to any person requiring them on
payment of the prescribed fee.
(3) The register of designs shall be prima facie evidence of any
mattersrequiredorauthorisedbythisActtobeenteredtherein.
(4) No notice of any trust, whether expressed, implied, or con
structive, shall be entered in the register of designs, and the
Commissioner shall not be affected by any such notice.
Compare: Registered Designs Act 1949, s 17 (UK); 1921-22 No 18 ss 55, 118, 119
26 Certificate of registration
(1) The Commissioner shall grant a certificate of registration in
the prescribed form to the registered proprietor of a design
when the design is registered.
(2) The Commissioner may, in a case where he is satisfied that
the certificate of registration has been lost or destroyed, or in

any other case in which he thinks it expedient, on application made to him in the prescribed manner and on payment of the prescribed fee, furnish a further certificate. Compare: Registered Designs Act 1949, s 18 (UK); 1921-22 No 18 s 54

27 Registration of assignments, etc

(1)
Where any person becomes entitled by assignment, transmission, or operation of a law to a registered design or to a share in a registered design, or becomes entitled as mortgagee, li-censee,orotherwisetoanyotherinterestinaregistereddesign, he shall apply to the Commissioner in the prescribed manner for the registration of his title as proprietor or co-proprietor, or, as the case may be, of notice of his interest, in the register of designs.
(2)
Withoutprejudicetotheprovisionsofsubsection(1),anapplication for the registration of the title of any person becoming entitled by assignment to a registered design or a share in a registered design, or becoming entitled by virtue of a mortgage, licence, or other instrument to any other interest in a registered design, may be made in the prescribed manner by the assignor, mortgagor, licensor, or other party to that instrument, as the case may be.
(3)
Where application is made under this section for the registration of the title of any person, the Commissioner shall, upon proof of title to his satisfaction,—
(a)
where that person is entitled to a registered design or a share in a registered design, register him in the register of designs as proprietor or co-proprietor of the design, andenterinthatregisterparticularsoftheinstrumentor event by which he derives title; or
(b)
wherethatpersonisentitledtoanyotherinterestinthe registered design, enter in that register notice of his interest, with particulars of the instrument (if any) creating it.
(4)
Subject to any rights vested in any other person of which notice is enteredin the registerofdesigns, theperson or persons registeredasproprietorofaregistereddesignshallhavepower to assign, grant licences under, or otherwise deal with the de
sign, and to give effectual receipts for any consideration for any such assignment, licence, or dealing: provided that any equities in respect of the design may be enforcedinlikemannerasinrespectofanyotherpersonalproperty.
(5)
Except for the purposes of an application to rectify the register under the following provisions of this Act, a document in respectofwhich no entryhasbeen madein the registerofdesigns under subsection (3) shall not be admitted in any Court as evidence of the title of any person to a registered design or share of or interest in a registered design unless the Court otherwise directs. Compare: Registered Designs Act 1949, s 19 (UK); 1921-22 No 18 s 122

27A Application of Personal Property Securities Act 1999

Nothing in sections 25 to 27 affects the operation of the Per sonal Property Securities Act 1999. Section 27A: inserted, on 1 May 2002, by section 191(1) of the Personal

Property Securities Act 1999 (1999 No 126).

28 Rectification of register by the Court

(1)
The Court may, on the application of any person aggrieved, order the register of designs to be rectified by the making of any entry therein or the variation or deletion of any entry therein.
(2)
InproceedingsunderthissectiontheCourtmaydetermineany question which it may be necessary or expedient to decide in connection with the rectification of the register.
(3)
NoticeofanyapplicationtotheCourtunderthissectionshall be given in the prescribed manner to the Commissioner, who shallbeentitledtoappearandbeheardontheapplication,and shall appear if so directed by the Court.
(4)
AnyordermadebytheCourtunderthissectionshalldirectthat noticeoftheordershallbeservedontheCommissionerinthe prescribedmanner; andtheCommissioner shall, on receipt of the notice, rectify the register accordingly. Compare: Registered Designs Act 1949, s 20 (UK); 1921-22 No 18 s 123

29 Power of Commissioner to correct errors

(1)
Where a mistake exists in the register of designs or in any documentissuedunderthisActbyreasonofanyerrororomission on the part of the Patent Office, the Commissioner may, in accordance with the provisions of this section, correct the mistake, and for that purpose may require the production of the document.
(2)
Where the Commissioner proposes to make any such correctionasaforesaidheshallgivenoticeoftheproposaltothepersons who appear to him to be concerned, and shall give them an opportunity to be heard before making the correction.
(3)
Whereamistakeexistsintheregisterofdesigns,orinanyapplicationforregistrationofadesignorotherdocumentfiledin pursuanceofsuchanapplication,orinanyproceedingsinconnection with any design, by reason of an error or an omission on the part of the proprietor of the design or of the applicant forregistrationofthedesignorofanyotherpersonconcerned, a correction may be made in accordance with the provisions of this section upon a request in writing by any person interested and payment of the prescribed fee. If it appears to the Commissioner that the correction would materially alter the meaningorscopeofthedocumenttowhichtherequestrelates and ought not to be made without notice to persons likely to beaffectedthereby,heshallrequirenoticeofthenatureofthe proposedcorrectiontobeadvertisedintheprescribedmanner.
(4)
Within the prescribed time after any such advertisement as aforesaid, any person interested may give notice to the Commissionerofoppositiontotherequest,andwhereanysuchnoticeofoppositionisgiventheCommissionershallgivenotice thereoftothepersonbywhomtherequestwasmade,andshall givetohimandtotheopponentanopportunitytobeheardbefore he decides the case.
(5)
AnappealtotheCourtshallliefromanydecisionoftheCommissioner under this section. Compare: RegisteredDesignsAct1949,s21(UK);1921-22No18s121;1946

No 32 s 7

s 30 Designs Act 1953 Reprinted as at19 April 2011
30 Inspection of registered designs
(1) Subject to the following provisions of this section and to any
regulations made in pursuance of subsection (2) of section 9,
therepresentationorspecimenofadesignregisteredunderthis
ActshallbeopentoinspectionatthePatentOfficeonandafter
the day on which the certificate of registration is issued.
(2) Inthecaseofadesignregisteredinrespectofanarticleofany
class prescribed for the purposes of this subsection, no repre
sentation or specimen of the design filed in pursuance of the
application shall, until the expiration of such period after the
day on which thecertificateof registrationis issued as maybe
prescribedinrelationtoarticlesofthatclass,beopentoinspec
tion at the Patent Office except by the registered proprietor, a
person authorised in writing by the registered proprietor, or a
person authorised by the Commissioner or by the Court:
provided that where the Commissioner proposes to refuse
an application for the registration of any other design on the
ground that it is the same as or differs only in immaterial
details or in features which are variants commonly used in
the trade, the applicant shall be entitled to inspect the repre
sentation or specimen of the first-mentioned design filed in
pursuance of the application for registration of that design.
(3) Inthecaseofadesignregisteredinrespectofanarticleofany
class prescribed for the purposes of subsection (2), the repre
sentationorspecimenofthedesignshallnot,duringtheperiod
prescribed as aforesaid, be inspected by any person by virtue
of this section except in the presence of the Commissioner or
of a member of his staff acting under him; and, except in the
case of an inspection authorised by the proviso to that subsec
tion, the person making the inspection shall not be entitled to
take a copy of the representation or specimen of the design or
any part thereof.
(4) Where an application for the registration of a design has been
abandoned or refused, neither the application for registration
nor any representation or specimen of the design filed in pur
suance thereof shall at any time be open to inspection at the
Patent Office or be published by the Commissioner.
(5) However, nothing in this section prevents the Commissioner
from publishing any of the following:
(a)
thedateofanapplicationfortheregistrationofadesign:
(b)
the number of an application for the registration of a design:
(c)
any details of an application for the registration of a

design that are required to be in the application form. Compare: RegisteredDesigns Act1949, s 22(UK);1921-22 No 18 ss59, 120

Section30(5): added,on19April2011,bysection5oftheDesignsAmendment Act 2010 (2010 No 15).

31 Information as to existence of copyright On the request of any person furnishing such information as may enable the Commissioner to identify the design, and on paymentoftheprescribedfee,theCommissionershallinform him whether the design is registered, and, if so, in respect of whatarticles,andwhetheranyextensionoftheperiodofcopyright has been granted, and shall state the date of registration and the name and address of the registered proprietor. Compare: Registered Designs Act 1949, s 23 (UK); 1921-22 No 18 s 60

32 Evidence of entries, documents, etc

(1)
AcertificatepurportingtobesignedbytheCommissionerand certifying that any entry which he is authorised by or under this Act to make has or has not been made, or that any other thingwhichheissoauthorisedtodohasorhasnotbeendone, shall be prima facie evidence of the matters so certified.
(2)
A copy of any entry in the register of designs or of any representation, specimen, or document kept in the Patent Office or anextract fromthe register orany such document, purporting to be certified by the Commissioner and to be sealed with the sealofthePatentOffice,shallbeadmittedinevidencewithout further proof and without production of the original. Compare: RegisteredDesignsAct1949,s24(UK);1921-22No18ss130,131

Legal proceedings and appeals

33 Certificate of contested validity of registration

(1) IfinanyproceedingsbeforetheCourtthevalidityoftheregistrationofadesigniscontested,anditisfoundbytheCourtthat the design is validly registered, the Court may certify that the

s 34 Designs Act 1953 Reprinted as at19 April 2011
validityoftheregistrationofthedesignwascontestedinthose
proceedings.
(2) Where any such certificate has been granted, then, if in any
subsequent proceedings before the Court for infringement of
thecopyrightintheregistereddesignorforcancellationofthe
registration of the design a final order or judgment is made or
given in favour of the registered proprietor, he shall, unless
theCourtotherwisedirects, be entitledtohiscostsasbetween
solicitor and client:
providedthatthissubsectionshallnotapplytothecostsofany
appeal in any such proceedings as aforesaid.
Compare: Registered Designs Act 1949, s 25 (UK); 1921-22 No 18 s 40
34 Remedy for groundless threats of infringement
proceedings
(1) Where any person(whetherentitled to or interested in a regis
tered design or an application for registration of a design or
not) by circulars, advertisements, or otherwise threatens any
other person with proceedings for infringement of the copy
rightinaregistereddesign,anypersonaggrievedtherebymay
bringanactionagainst himforanysuchrelief asismentioned
in subsection (2).
(2) Unlessinanyactionbroughtbyvirtueofthissectionthedefen
dant proves that the actsinrespectof which proceedings were
threatened constitute or, if done, would constitute an infringe
ment of the copyright in a registered design the registration of
which is not shown by the plaintiff to be invalid, the plaintiff
shall be entitled to the following relief, that is to say:
(a) a declaration to the effect that the threats are unjustifi
able; and
(b) aninjunctionagainstthecontinuanceofthethreats;and
(c) such damages, if any, as he has sustained thereby.
(3) For the avoidance of doubt it is hereby declared that a mere
notification that a design is registered does not constitute a
threat of proceedings within the meaning of this section.
Compare: Registered Designs Act 1949, s 26 (UK); 1921-22, No 65

35 Appeal to High Court

(1)
EveryappealunderthisActagainstadecisionoftheCommissioner shall be to the High Court.
(2)
Notice of every such appeal shall be filed in the Court and served upon the Commissioner within 28 days after the day on which the decision appealed against was given.
(3)
In any such appeal the Court shall have and may exercise the samediscretionarypowersasareconferredupontheCommissioner.

(4) Except with the leave of the High Court or of the Court of Appeal,noappealshallliefromanydecisionoftheHighCourt on an appeal against a decision of the Commissioner. Compare: 1921-22 No 18 s 140 Section 35(1): amended, on 1 April 1980, pursuant to section 12 of the Judicature Amendment Act 1979 (1979 No 124).

Section 35(4): amended, on 1 April 1980, pursuant to section 12 of the Judicature Amendment Act 1979 (1979 No 124).

Powers and duties of Commissioner

36 Exercise of discretionary powers of Commissioner Without prejudice to any provisions of this Act requiring the Commissioner to hear any party to proceedings thereunder, or to give to any such party an opportunity to be heard, the Commissioner shall give to any applicant for registration of a designanopportunitytobe heardbeforeexercisingadversely totheapplicantanydiscretionvestedintheCommissionerby or under this Act. Compare: Registered Designs Act 1949, s 29 (UK); 1921-22 No 18 s 124

37 Commissioner may grant extension of time

(1)
Where by this Act anything is required to be done within a prescribed time, and by reason of delay in the Patent Office the thing is not so done, the Commissioner may extend the time for the doing of the thing.
(2)
No fees shall be payable in respect of any extension of time granted under this section.
(3)
The powers conferred on the Commissioner by this section may be exercised notwithstanding that in any case the time limited may have expired. Compare: 1921-22 No 18 s 125

37A Additional provisions for extending time limits

(1)
TheCommissionermayextendthetimeprescribedinsubsection(1)of section21 forthefilingofanapplicationunderthat section on such terms (if any) as he thinks fit where he is satisfied that the circumstances warrant the extension.
(2)
Notwithstanding subsection (1), the Commissioner shall refuse to grant an extension of time under that subsection if in his opinion—
(a)
the applicant or his agent has not allowed a reasonable margin of time for the delivery to the Patent Office, by postorotherwise,ofanydocumentsrelatingtothematterinrespectofwhichtheapplicationfortheextension of time is made; or
(b)
theapplicantorhisagenthasinanyotherwayfailedto act with due diligence and prudence in respect of such matter; or
(c)
there has been undue delay in bringing the application for the extension of time or in prosecuting the application.
(3)
Every extension of time granted under this section shall be advertised in the Journal in the prescribed manner.
(4)
Where an application is made for an extension of time under this section by an agent on behalf of any applicant, the Commissioner may as a condition of granting the application require that written confirmation that the application is authorised shall be signed or executed by the applicant and lodged withtheCommissionerwithinsuchtimeastheCommissioner specifies.
(5)
Anyextensionoftimeunderthissection,andanyrequirement given or other action taken by the Commissioner under this section,maybegranted,given,ortakensoastohaveeffectin respect of things done or omitted to be done before the commencement of this section, as long as the application for the extensionoftimehasbeenmadebeforeregistrationofthede
signinrespect of which the application under this section has been made.
(6)
The Governor-General may, from time to time, by Order in Council, make regulations for all or any of the following purposes:
(a)
for the protection of persons who at any time in good faith have begun to avail themselves of any design that isthesubject-matterofamatterinrespectofwhichany application under this section is made:
(b)
prescribingtheevidencethattheCommissionermayaccept in support of applications under this section:
(c)
prescribingthemannerofadvertisingintheJournalextensions of time granted under this section:
(d)
prescribing the grounds of opposition to applications under this section:
(e)
regulating the procedure to be followed in relation to applications under this section and opposition to such applications:
(f)
prescribingthefeestobepaidinrespectofapplications under this section.

Section 37A: inserted, on 20 October 1972, by section 3 of the Designs Amendment Act 1972 (1972 No 53).

38 Costs and security for costs

(1)
TheCommissionermay,inanyproceedingsbeforehimunder thisAct,byorderawardtoanypartysuchcostsashemayconsider reasonable, and direct how and by what parties they are to be paid; and any such order may be entered as a judgment oftheCourtand,withtheleaveoftheCourt,maybeenforced accordingly.
(2)
IfanypartybywhomapplicationismadetotheCommissioner for the cancellation of the registration of a design or for the grantofalicenceinrespectofaregistereddesign,orbywhom notice of appeal is given from any decision of the Commissioner under this Act, neither resides nor carries on business in New Zealand, the Commissioner, or, in the case of appeal, theCourt,mayrequirehimtogivesecurityforthecostsofthe
s 39 Designs Act 1953 Reprinted as at19 April 2011
proceedings or appeal, and in default of such security being given may treat the application or appeal as abandoned. Compare: Registered Designs Act 1949, s 30 (UK); 1921-22 No 18 ss 45, 127
39 Evidence before Commissioner
(1) Subject to regulations made under this Act, the evidence to be given in any proceedings before the Commissioner under thisActmaybegivenbyaffidavitorstatutorydeclaration;but the Commissioner may if he thinks fit in any particular case take oral evidence instead of or in addition to such evidence
asaforesaid, andmayallow anywitness to becross-examined on his affidavit or declaration. Any such statutory declaration may, in the event of an appeal under this Act, be used before the Court instead of evidence by affidavit, and where so used shall have all the incidents and consequences of evidence by affidavit.
(2) Subject to any such regulations as aforesaid, the Commissioner shall in respect of requiring the attendance and the examination of witnesses on oath and the discovery and production of documents have the same powers as the Commissioner of Patents has in proceedings under the Patents Act 1953.
(3) AnyevidencegivenonoathbeforetheCommissionershallbe deemed to be given in a judicial proceeding for the purposes of sections 108 and 109 of the Crimes Act 1961.
(4) Section 111 of the Crimes Act 1961 shall apply to every affidavit and statutory declaration made for the purposes of this Act.
Compare: Registered Designs Act 1949, s 31 (UK); 1921-22 No 18 s 129
Section 39(3): amended, on 1 January 1962, by section 412(2) of the Crimes Act 1961 (1961 No 43).
Section 39(4): amended, on 1 January 1962, by section 412(2) of the Crimes Act 1961 (1961 No 43).
40 Recognition of agents Where by this Act any act has to be done by or to any person in connection with a registered design or proposed registered designorany proceedingsrelatingthereto,theactmay, unless

otherwiseprescribed, bedonebyorto anagentofthat person duly authorised in the prescribed manner. Compare: 1921-22 No 18 s 136

41 Commissioner may dispense with production of probate or letters of administration in certain cases

(1) For the purposes of this section, unless the context otherwise

requires,— deceasedproprietor meansaregisteredproprietorofanydesignwhohasdied,whetherbeforeorafterthecommencement ofthisAct;andincludesanyapplicantfortheregistrationofa design who has died before it is registered, whether before or after the commencement of this Act

qualified person, in relation to any deceased proprietor, means a person who satisfies the Commissioner—

(a)
that he has obtained or is entitled to obtain probate of the will of the deceased proprietor or letters of administration in his estate in the place where the deceased proprietor was domiciled at his death, or that he is the legal representative of the deceased proprietor in that place:
(b)
thatprobateofthewillofthedeceasedproprietororlettersofadministrationinhisestatehavenotbeengranted or resealed in New Zealand:

(c) [Repealed]

(d) thattheinterestsofthecreditorsofthedeceasedproprietor,andofallpersonsbeneficiallyinterestedunderhis will or on his intestacy, will be adequately safeguarded if the Commissioner of Designs registers the qualified person as the proprietor of the design.

(2)
Uponapplicationintheprescribedmannerandpaymentofthe prescribed fees, the Commissioner of Designs, in his discretionand withoutrequiring the productionofprobate or letters of administration, may,—
(a)
where the registered proprietor of any design has died, whether before or after the commencement of this Act, registeranyqualifiedpersonastheproprietorofthedesign:
(b)
where an applicant for the registration of a design has died before the registration of the design, whether before or after the commencement of this Act, allow any qualified person to complete the application and may register that person as the proprietor of the design.
(3)
Every qualified person who is registered under this section as the proprietor of a design shall hold it subject to all existing interests and equities affecting it.

(4) Nothing in sections 70 or 73 of the Administration Act 1969 shall be deemed to restrict the operation of this section. Compare: 1947 No 37 s 5 Section41(1) qualifiedperson: amended,on21July1955,pursuanttosection 89(7) of the Estate and Gift Duties Act 1955 (1955 No 105).

Section 41(1) qualified person paragraph (c): repealed, on 24 May 1999, by section 17 of the Estate Duty Repeal Act 1999 (1999 No 64).

Section 41(4): amended, on 1 January 1971, by section 84(1) of the Administration Act 1969 (1969 No 52).

Restoration of lapsed copyright in registereddesign

Heading: inserted, on 19 April 2011, by section 6 of the Designs Amendment Act 2010 (2010 No 15).

41A Restoration of lapsed copyright in registered design

(1)
This section applies if the period of copyright in a registered designhasendedbyreasonofafailuretomakeanapplication under section 12(2) or to pay the prescribed fee under section 12(2) (or both).
(2)
The Commissioner may, on a request made in the prescribed manner and in accordance with sections 41B to 41F, by order extendtheperiodofcopyrightinaregistereddesignforasecondorthirdperiodof5yearsasprovidedforin section12(2) if the Commissionerissatisfied thatthe relevant failuretocomply with section 12(2) was unintentional.
(3)
Arequestforanorderunderthissectionmustcontainastatement that fully sets out the circumstances that led to the rele vant failure to comply with section 12(2).
(4)
TheCommissionermayrequirethepersonwhomakestherequest to provide any further evidence that the Commissioner thinks fit.
(5)
AnappealtotheCourtmaybemadefromanydecisionofthe Commissioner under this section or sections 41B to 41F. Section 41A: inserted, on 19 April 2011, by section 6 of the Designs

Amendment Act 2010 (2010 No 15).

41B Persons who may make request for restoration of copyright

(1)
Arequestforanorderunder section41A maybemadebythe person who was the registered proprietor or, if that person is deceased, by that person’s personal representative.
(2)
If there were 2 or more registered proprietors, the request for an order under section 41A may, with the leave of the Com missioner, be made by 1 or more of them without joining the others. Section 41B: inserted, on 19 April 2011, by section 6 of the Designs

Amendment Act 2010 (2010 No 15).

41C When request for restoration of copyright may be made

(1)
A request for an order under section 41A may only be made within the prescribed period.
(2)
However, the Commissioner may extend the period within which a request may be made if the Commissioner is satisfied that there was no undue delay in making the request.
(3)
The person who makes the request must, for the purposes of subsection (2), provide the Commissioner with a statement thatfully sets outthe circumstances that causedthe delayand the reasons why the delay is not undue.
(4)
TheCommissionermayrequirethatpersontoprovideanyfurther evidence that the Commissioner thinks fit. Section 41C: inserted, on 19 April 2011, by section 6 of the Designs

Amendment Act 2010 (2010 No 15).

41D Commissioner’s consideration of whether prima facie case has been made out for restoration

(1)
The Commissioner must, after considering a request made in accordance with sections 41A to 41C, give the person who
made the request a reasonable opportunity to be heard if the Commissionerisnotsatisfiedthataprimafaciecasehasbeen made out for an order under section 41A.
(2)
TheCommissionermustpublisharequestmadeinaccordance with sections 41A to 41C in the Journal if the Commissioner is satisfied that a prima facie case has been made out for an order under section 41A. Section 41D: inserted, on 19 April 2011, by section 6 of the Designs

Amendment Act 2010 (2010 No 15).

41E Notice of opposition and reasonable opportunity to be heard

(1)
Any person may, within the prescribed period, give notice to theCommissionerofoppositiontoanorderbeingmadeunder section 41A on either or both of the following grounds:
(a)
that the relevant failure to comply with section 12(2) was not unintentional:
(b)
if the period within which a request for an order under section 41A may be made is extended under section 41C , that the delay in making the request was undue.
(2)
The Commissioner must notify the person who made the request if a person has given notice under subsection (1) and provide the person who made the request with a copy of that notice.
(3)
TheCommissionermustgivethepersonwhomadetherequest and the opponent a reasonable opportunity to be heard before the Commissioner decides the case. Section41E:inserted,on19April2011,by section6 oftheDesignsAmendment

Act 2010 (2010 No 15).

41F Order to be made on payment of unpaid fees

(1)
If the Commissioner has published a request under section 41D , he or she must make an order under section 41A in ac cordancewiththerequestaftertheprescribedperiodforgiving notice of opposition if—
(a)
all unpaid prescribed fees are paid; and
(b)
all other prescribed additional penalties (if any) are paid; and
(c)
either—
(i)
no notice of opposition is given within the prescribed period; or
(ii)
the decision of the Commissioner is in favour of the person who made the request (in the case of a notice of opposition having been given within the prescribed period).
(2)
Anorderfortheextensionoftheperiodofcopyrightinaregistered design—
(a)
maybemadesubjecttoaconditionrequiringtheregistration of any matter if the provisions of this Act concerning entries in the register of designs have not been complied with; and
(b)
must contain, or be subject to, the provisions that are prescribed for the protection or compensation of persons who availed themselves, or took definite steps by wayofcontractorotherwisetoavailthemselves,ofthe design between the date when the period of copyright ended and the date on which the request is published under section 41D; and
(c)
may be made subject to any other conditions that the Commissioner thinks fit.
(3)
Ifanyconditionofanorderunderthissectionisnotcomplied with by the registered proprietor, the Commissioner may revoke the order and give any directions that are consequential on the revocation that the Commissioner thinks fit.
(4)
The Commissioner must, before the Commissioner makes a decision under subsection (3), give the registered proprietor a reasonable opportunity to be heard. Section41F:inserted,on19April2011,by section6 oftheDesignsAmendment

Act 2010 (2010 No 15).

Restoration of design applications

Heading: inserted, on 19 April 2011, by section 6 of the Designs Amendment Act 2010 (2010 No 15).

41G Request for restoration of abandoned design application

(1)
This section applies if an application for the registration of a design is abandoned under section 7(4).
(2)
TheapplicantmaymakearequesttotheCommissionerinthe prescribed manner for an order to restore the application and to extend the period for complying with the requirements imposed on the applicant by or under this Act to a date that is specified in the order.
(3)
Every request for an order must contain a statement that fully sets out the circumstances that led to the abandonment under section 7(4).
(4)
TheCommissionermust,afterconsideringarequest,givethe person who made the request a reasonable opportunity to be heard if the Commissioner is not satisfied that the default or neglect on the part of the applicant that resulted in the appli cation beingabandoned under section7(4) was unintentional.
(5)
The Commissioner must publish the request in the Journal if the Commissioner is satisfied that the default or neglect on the part of the applicant that resulted in the application being abandoned under section 7(4) was unintentional.
(6)
AnappealtotheCourtmaybemadefromanydecisionofthe Commissioner under this section or sections 41H to 41J. Section 41G: inserted, on 19 April 2011, by section 6 of the Designs

Amendment Act 2010 (2010 No 15).

41H When request for restoration of application may be made

(1)
A request under section 41G may only be made within the prescribed period.
(2)
However, the Commissioner may extend the period within which a request may be made if the Commissioner is satisfied that there was no undue delay in making the request.
(3)
The applicant must, for the purposes of subsection (2), providetheCommissionerwithastatementthatfullysetsoutthe circumstances that caused the delay and the reasons why the delay is not undue.
(4)
The Commissioner may require the applicant to provide any further evidence that the Commissioner thinks fit. Section 41H: inserted, on 19 April 2011, by section 6 of the Designs

Amendment Act 2010 (2010 No 15).

41I Notice of opposition

(1)
Any person may, within the prescribed period, give notice to theCommissionerofoppositiontoanorderbeingmadeunder section 41J on either or both of the following grounds:
(a)
that the default or neglect on the part of the applicant that resulted in the application being abandoned under section 7(4) was not unintentional:
(b)
if the period within which a request under section 41G may be made is extended under section 41H, that the delay in making the request was undue.
(2)
The Commissioner must notify the applicant if a person has given notice under subsection (1) and provide the applicant with a copy of that notice.
(3)
The Commissioner must give the applicant and the opponent areasonableopportunitytobeheardbeforetheCommissioner decides the case. Section41I:inserted,on19April2011,by section6 oftheDesignsAmendment

Act 2010 (2010 No 15).

41J Commissioner to determine matter

(1)
The Commissioner must, after the expiry of the prescribed period for giving notice of opposition under section 41I,—
(a)
by order restore the application and extend the period forcomplyingwiththerequirementsimposedontheapplicant by or under this Act to a period that is specified in the order if the Commissioner is satisfied that—
(i)
thedefaultorneglectonthepartoftheapplicant that resulted in the application being abandoned under section 7(4) was unintentional; and
(ii)
iftheperiodwithinwhicharequestunder section 41G may be made was extended under section 41H , there was no undue delay in making the request; or
(b)
dismiss the request.
(2)
Anorderunderthissectionmustcontain,orbesubjectto,the provisionsthatare prescribedfortheprotectionorcompensation of persons who availed themselves, or took definitesteps bywayofcontractorotherwisetoavailthemselves,ofthedesignbetweenthedatewhentheapplicationbecameabandoned
s 42 Designs Act 1953 Reprinted as at19 April 2011
and the date on which the request is published under section 41G.
(3) The Commissioner must publish in the Journal the making of an order under subsection (1) after that order is made.
Section41J:inserted,on19April2011,bysection6oftheDesignsAmendment Act 2010 (2010 No 15).
Offences
42 (1) (2) Offences in respect of designs required to be kept secret Every person who fails to comply with any direction given under section 9, or who makes or causes to be made an application for the registration of a design in contravention of thatsection, commitsanoffenceandshallbeliableonconviction on indictment to imprisonment for a term not exceeding 2 years or to a fine not exceeding $1,000, or to both such imprisonment and such fine. Where an offence against section 9 is committed by a body corporate, every person who at the time of the commission of the offence is a director, general manager, secretary, or other similar officer of the body corporate, or is purporting to act in any such capacity, shall be deemed to have committed that offenceunlessheprovesthattheoffencewascommittedbythe body corporate without his consent or connivance and that he exercised all such diligence to prevent the commission of the offence by the body corporate as he ought to have exercised havingregardtothenatureofhisfunctionsinthatcapacityand to all the circumstances.
(3) [Repealed] Compare: Registered Designs Act 1949, s 33 (UK)
Section 42(3): repealed by section 214(1) of the Summary Proceedings Act 1957.
43 (1) Falsification of register, etc Every person who makes or causes to be made a false entry in the register of designs, or a writing falsely purporting to be a copy of an entry in that register, or produces or tenders or causes to be produced or tendered in evidence any such writing, knowing the entry or writing to be false, commits an of

fence and shall be liable on conviction on indictment to imprisonment for a term not exceeding 2 years.

(2) [Repealed] Compare: Registered Designs Act 1949, s 34 (UK);1921-22 No18 s 143(1) Section 42(2): repealed, by section 214(1) of the Summary Proceedings Act 1957.

44 Fine for falsely representing a design as registered

(1)
Every person who falsely represents that a design applied to any article sold by him is registered in New Zealand in respect of that article commits an offence and shall be liable on summary conviction to a fine not exceeding $40; and for the purposesofthisprovisionapersonwhosellsanarticlehaving stamped,engraved,orimpressedthereonorotherwiseapplied thereto the words “registered in New Zealand” or any other words expressing or implying that the design applied to the article isregistered in New Zealand shall bedeemed torepresentthatthedesignappliedtothearticleisregisteredinrespect of that article.
(2)
Every person who, after the copyright in a registered design has expired, marks any article to which the design has been applied with the words “registered in New Zealand” or any word or words implying that there is subsisting copyright in the design in New Zealand or causes any such article to be so marked commits an offence and shall be liable on summary conviction to a fine not exceeding $40. Compare: Registered Designs Act 1949, s 35 (UK); 1921-22 No 18 s 143(3),

(4)

Supplemental

45 Hours of business

(1)
TheCommissioner,fromtimetotimebynoticeintheJournal, mayfixthehoursduringwhichthePatentOfficeshallbeopen for the transaction of public business under this Act, and may declare the Patent Office closed for the transaction of public business on any day.
(2)
WherethetimeprescribedfordoinganyactortakinganyproceedingexpiresonadayonwhichthePatentOfficeisnotopen andbyreasonthereoftheactorproceedingcannotbedoneor

45

taken on that day,the act or proceeding shall be deemedtobe in time if done or taken on the next day on which the Patent Office is open. Compare: Registered Designs Act 1949, s 39 (UK); 1921-22 No 18 s 133

Section45(1): substituted,on10December1976,bysection2(1)oftheDesigns Amendment Act 1976 (1976 No 86).

Section45(2): amended, on10December1976, bysection2(2)ofthe Designs Amendment Act 1976 (1976 No 86).

45A Closing of Patent Office at short notice

(1)
Notwithstanding subsection (1) of section 45, where, because of an emergency or other temporary circumstances, the Commissionerissatisfiedthatitisorwillbenecessaryordesirable to close the Patent Office on any day and it is not practicable to give notice of the closure in the Journal as required by that subsection,theCommissionermay,withoutgivingthatnotice, declare the Patent Office closed for the transaction of public business on that day in accordance with the provisions of this section.
(2)
In every case where the Commissioner proposes to declare or has declared the Patent Office closed under subsection (1) he shall,ifpracticable,displayapublicnoticeofthatfactinoron the building in which the Patent Office is situated.
(3)
AssoonaspracticablethereaftertheCommissionershallalso cause a copy of the public notice, or (if no such notice was displayed) a notice of the exercise of his powers under this section, to be published in the Journal. Section 45A: inserted, on 10 December 1976, by section 3 of the Designs

Amendment Act 1976 (1976 No 86).

46 Regulations

(1)
Subject to the provisions of this Act, the Governor-General may from time to time, by Order in Council, make all such regulations as may in his opinion be necessary or expedient for giving effect to the provisions of this Act and for the due administration thereof.
(2)
Without limiting the general power conferred by subsection (1), it is hereby declared that regulations may be made under this section for all or any of the following purposes:
(a)
for regulating the business of the Patent Office in relation to designs:
(b)
for regulating all matters by this Act placed under the direction or control of the Commissioner:
(c)
for prescribing the form of applications for registration of designs and of any representations or specimens of designs or other documents which may be filed at the Patent Office, and for requiring copies to be furnished of any such representations,specimens, ordocuments:

(ca) for prescribing the manner in which applications may be made under section 12(2):

(cb) for regulating the procedure to be followed in connec tion witha request to the Commissionerunder sections 41A to 41F (including providing for when and how re questsmustbemade,theperiodforgivingnoticeofop position, penalties payable under section 41F, and the matters referred to in section 41F(2)(b)):

(cc)
for regulating the procedure to be followed in connec tion witha request to the Commissionerunder sections 41G to 41J (including providing for when and how re questsmustbemade,theperiodforgivingnoticeofop position, and the matters referred to in section 41J(2)):
(d)
for regulating the procedure to be followed in connection with any application or request to the Commissioner or in connection with any proceeding before the Commissionerandforauthorisingtherectificationofirregularities of procedure:
(e)
for regulating the keeping of the register of designs:
(f)
for authorising the publication and sale of copies of representations of designs and other documents in the Patent Office:
(g)
for prescribing classes of persons whom the Commissioner may refuse to recognise as agents in respect of proceedings under this Act:
(h)
forprescribingmatterstobepublishedinthePatentOffice Journal:
(i)
for prescribing anything authorised or required by this Act to be prescribed by regulations.
s 47 Designs Act 1953 Reprinted as at19 April 2011
(3) [Repealed]
Compare: Registered Designs Act 1949, s 36 (UK); 1921-22 No 18 s 138
Section 46(2)(ca): inserted, on 20 April 2010, by section 7 of the Designs Amendment Act 2010 (2010 No 15).
Section 46(2)(cb): inserted, on 20 April 2010, by section 7 of the Designs Amendment Act 2010 (2010 No 15).
Section 46(2)(cc): inserted, on 20 April 2010, by section 7 of the Designs Amendment Act 2010 (2010 No 15).
Section46(3): repealed,on19December1989,bysection11oftheRegulations (Disallowance) Act 1989 (1989 No 143).
47 Fees
(1) Thereshallbepaidinrespectoftheregistrationofdesignsand
applications therefor, and in respect of other matters relating
to designs arising under this Act, such fees as may from time
to time be prescribed by regulations made under this Act, and
all such fees shall be paid into a Departmental Bank Account.
(2) Any sum paid to the Commissioner by mistake, or any sum
the payment of which is not required by the regulations made
underthis Act, maybe refundedbytheCommissioner, and all
money so refunded shall be paid out of public money without
further appropriation than this Act.
Compare: Registered Designs Act 1949, s 40 (UK); 1921-22 No 18 s 117
Section47(1): amended,on1April1964, pursuantto section 4(4)ofthePublic Revenues Amendment Act 1963 (1963 No 46).
Section47(2): amended,on1April1964, pursuantto section 4(4)ofthePublic Revenues Amendment Act 1963 (1963 No 46).
48 Service of notices, etc, by post
(1) Any notice required or authorised to be given by or under this
Act, and any application or other document so authorised or
required to be made or filed, may be given, made, or filed by
sendingitbypostinaletteraddressedtothepersonconcerned
at his usual or last known address.
(2) Where any notice is sent by the Commissioner to any person
by post as aforesaid, the notice shall be deemed to have been
givenatthetimewhenthelettercontainingitwouldhavebeen
delivered in the ordinary course of post.
Compare: Registered Designs Act 1949, s 41 (UK); 1921-22 No 18 s 132

49 Annual report

The Commissioner of Patents shall, in his annual report with respect to the operation of the Patents Act 1953, include a re port with respect to the operation of this Act as if it formed part of or was included in that Act. Compare: Registered Designs Act 1949, s 42 (UK); 1921-22 No 18 s 128

50 Application of Act to Tokelau

This Act shall be in force in Tokelau.

Section 50: amended, on 9 December 1976, pursuant to section 3(8) of the Tokelau Amendment Act 1976 (1976 No 122).

51 Saving

NothinginthisActshallbeconstruedasauthorisingorrequiring the Commissioner to register a design the use of which would, in his opinion, be contrary to law or morality. Compare: Registered Designs Act 1949, s 43(1) (UK); 1939 No 26 s 71

52 Repeals and savings

(1)
Theenactmentsspecifiedinthe Schedule tothisActarehereby repealed.
(2)
Without limiting the provisions of the Acts Interpretation Act 1924, it is hereby declared that the repeal of any provision by this Act shall not affect any document made or any thing whatsoeverdoneundertheprovisionsorepealedorunderany corresponding former provision, and every such document or thing, so far as it is subsisting or in force at the time of the repealandcouldhavebeenmadeordoneunderthisAct,shall continue and have effect as if it had been made or done under thecorrespondingprovisionofthisActandasifthatprovision had been in force when the document was made or the thing was done.
(3)
Any design registered before the commencement of this Act shall be deemed to be registered under this Act in respect of articles of the class in which it is registered.
(4)
Where, in relation to any design, the time for giving notice to the Commissioner under section 63 of the Patents, Designs, and Trade Marks Act 1921-22 expired before the commencement of this Act and the notice was not given, subsection (2)

49

of section 10 of this Act shall not apply in relation to that de sign or any registration of that design.

(5) AnydocumentreferringtoanyenactmentrepealedbythisAct shallbeconstruedasreferringtothecorrespondingenactment of this Act. Compare: Registered Designs Act 1949, s 48 (UK)

Schedule s 52(1) Enactments repealed Patents, Designs, andTradeMarksAct1921-22 (1921-22 No 18)

Amendment(s) incorporated in the Act(s)

Patents, Designs, and Trade Marks Amendment Act 1939 (1939 No 26)

Amendment(s) incorporated in the Act(s)

Patents, Designs, and Trade Marks Amendment Act 1943 (1943 No 6)

Amendment(s) incorporated in the Act(s)

Patents, Designs, and Trade Marks Amendment Act 1946 (1946 No 32)

Amendment(s) incorporated in the Act(s)

Patents, Designs, and Trade Marks Amendment Act 1947 (1947 No 37)

Amendment(s) incorporated in the Act(s)

Contents

1 General

2 About this eprint

3 List of amendments incorporated in this eprint (most recent first)

Notes

1 General

This is an eprint of the Designs Act 1953. The eprint incorporates all the amendments to the Act as at 19 April 2011. The list of amendments at the end of these notes specifies all the amendments incorporated into this eprint since 3 September 2007.

Relevantprovisionsofany amending enactments thatcontain transitional, savings, or application provisions that cannot be compiled in the eprint are also included, after the principal enactment, in chronological order.

2 About this eprint

This eprint has not been officialised. For more information about eprints and officialisation, please see http://www.pco.parliament.govt.nz/eprints/ .

3 List of amendments incorporated in this eprint (most recent first)

Designs Amendment Act 2010 (2010 No 15)