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Designs Bill 2003

Part 2 Transitional provisions

   

151   Application of this Act to certain designs

             (1)  This section applies to the following designs:

                     (a)  a design registered under the old Act immediately before the commencing day;

                     (b)  a design registered after the commencing day as a result of a design application to which the old Act continued to apply because of section 153.

             (2)  The design:

                     (a)  is taken to be registered under this Act:

                              (i)  in the case of a design mentioned in paragraph (1)(a)—on and from the commencing day; and

                             (ii)  in the case of a design mentioned in paragraph (1)(b)—on and from the day on which the design was registered; and

                     (b)  is taken to have been examined by the Registrar under Part 3 of Chapter 5 and a certificate of examination is taken to have been issued under section 67.

             (3)  However, despite subsection (2):

                     (a)  the old Act continues to apply for the purposes of determining the validity of the registration of the design; and

                     (b)  this Act does not apply for the purposes of determining the validity of the registration of the design; and

                     (c)  the design must not be examined under Chapter 5.

152   Term of registration of certain designs

                   Despite section 151:

                     (a)  the term of registration of a design to which that section applies ceases to be in force on the day on which it would have ceased to be in force under the old Act if the old Act had not been repealed; and

                     (b)  section 27A of the old Act continues to apply to the design as if the old Act had not been repealed.

153   Applications made before commencing day

             (1)  The old Act continues to apply to an application made under the old Act before the commencing day as if the old Act had not been repealed, unless a conversion request is made under section 159 in respect of the application.

             (2)  However, an application for an extension of time in relation to an application mentioned in subsection (1) must be made under section 137 of this Act.

             (3)  If, after dealing with an application under the old Act, the Registrar is required to register the design to which the application relates, the Registrar must comply with section 45 of this Act in relation to the registration of the design.

154   Other applications and proceedings

             (1)  This Act applies, on and after the commencing day, to any application, request, action or proceeding made or started under the old Act and not finally dealt with under that Act before that day as if the application, request, action or proceeding had been made or started under a corresponding provision of this Act.

             (2)  Subsection (1) does not apply to:

                     (a)  an application to which the old Act continues to apply under section 153; or

                     (b)  a proceeding to which the old Act continues to apply under section 155.

Note:          Section 152 deals with the application of section 27A of the old Act.

155   Pending proceedings

             (1)  If proceedings arising from an application to a court under the old Act were pending immediately before the commencing day, the matter is to be decided as if the old Act had not been repealed.

             (2)  However, any order made by a court in relation to rectification must relate to the Register under this Act.

156   Infringement under old Act

             (1)  This section applies to the following designs:

                     (a)  a design that was at any time registered under the old Act and had not been expunged from the Register under the old Act (whether or not the design is a design to which section 151 applies); and

                     (b)  a design that was registered after the commencing day as a result of an application to which the old Act applied because of section 153.

             (2)  If:

                     (a)  either of the following applies:

                              (i)  a person engages, before the commencing day, in conduct that infringed the monopoly in the design under the old Act;

                             (ii)  a person engages, after the commencing day, in conduct that would have infringed the monopoly in the design under the old Act if that Act were still in force; and

                     (b)  an action relating to that infringement was not pending immediately before the commencing day;

an action may be brought under this Act for infringement of the design.

             (3)  However, in an action under subsection (2):

                     (a)  the old Act continues to apply for the purposes of determining whether the person’s conduct infringed the monopoly in the design; and

                     (b)  this Act does not apply for the purposes of determining whether the person’s conduct infringed the monopoly in the design; and

                     (c)  a person is not entitled to any injunction or other relief to which the person would not have been entitled under the old Act.

             (4)  Subsection (2) is subject to any law with respect to the time period within which an action of a kind mentioned in that subsection may be started.

157   Registrar and Deputy Registrar

                   A person who held office as the Registrar, or as a Deputy Registrar, under the old Act immediately before the commencing day continues to hold office as the Registrar or Deputy Registrar (as the case requires) under this Act on and after that day.

158   The Register

                   On and after the commencing day, the Register within the meaning of the old Act is taken to be the Register within the meaning of this Act.

159   Conversion of transitional applications

             (1)  A person who has made a transitional application may request that the transitional application be treated as a converted application. This is a conversion request .

             (2)  A conversion request must be:

                     (a)  made before the end of the prescribed period; and

                     (b)  in writing and filed; and

                     (c)  made in accordance with any requirements prescribed by the regulations.

             (3)  If a conversion request is made in respect of a transitional application, nothing that has been done under the old Act in relation to the application before the request was made is taken to constitute an examination under Chapter 5.

             (4)  If a conversion request is made in respect of a transitional application, the application is taken to be a converted application from the date of the conversion request.

160   Effect of a converted application

             (1)  A converted application is taken to be an application made under this Act, subject to the modifications set out in this section.

             (2)  The filing date of a converted application is taken under section 26 of this Act to be the filing date of the transitional application.

             (3)  The priority date of a design disclosed in a converted application is taken under section 27 of this Act to be the same priority date as it had under the transitional application.

             (4)  A converted application is taken to meet the minimum filing requirements mentioned in subsection 21(2) of this Act.

             (5)  A converted application is taken to include a request under section 35 of this Act for registration of each of the designs disclosed in the converted application.

             (6)  The term of registration of a design disclosed in a converted application is taken under section 46 of this Act to start from the date of the conversion request under subsection 159(1).

             (7)  An amendment requested under section 22B of the old Act in relation to a transitional application to which a converted application relates is taken to be an amendment requested under section 28 of this Act.

             (8)  If:

                     (a)  a converted application is amended under section 28 of this Act to exclude one or more of the designs disclosed in the converted application; and

                     (b)  the applicant files a design application under section 23 of this Act in respect of one or more of the excluded designs;

the term of registration of the excluded designs starts from the date of the conversion request under subsection 159(1).

161   Definitions

                   In this Chapter:

commencing day means the day on which this Act commences.

old Act means the Designs Act 1906 .

transitional application means an application for registration of a design that:

                     (a)  is made under the old Act before the commencing day; and

                     (b)  is not a lapsed application; and

                     (c)  is not in relation to a design that has been registered or refused registration.