The recent changes to the Designs Act 2003 will ultimately affect designers, applicants, publishers of designs, exclusive licensees, and other relevant parties. As an example, the new 12-month grace period will enable applicants who inadvertently disclose their design prior to the priority date of their application to have their prior disclosures disregarded during a determination regarding the distinctiveness of the design. Similarly, new prior use infringement exemptions will serve to protect individuals who have commenced using their design prior to filing an application for design registration.
Another key amendment includes that of the new ‘informed users and familiar persons’ standard. This amendment is intended to provide clarity and support to the intention of Parliament that an assessment of a design does not need to be undertaken by an individual who uses the design or product, and mere familiarity with the product or design is sufficient for an assessment to be made.
Further changes that will take effect as of 10 March 2022 include the Courts’ empowerment to refuse an order for relief against a defendant who had infringed a design in the period between the filing date and the registration date if the defendant was unaware of the design application. Another amendment will provide exclusive licensees with greater rights in relation to their designs, such as the right to bring forth infringement proceedings.
Ultimately, the new changes to the Designs Act 2003 are intended to provide more comprehensive protection for designers, applicants, individuals involved in publishing designs, exclusive licensees, and other relevant parties.
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1 Designs Amendment (Advisory Council on Intellectual Property Response) Act 2021 (Cth).
2 Designs Act 2003 (Cth).
