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Designs Bill 2003

Part 4 Prohibition orders

   

108   Prohibition of publication of information about designs

             (1)  The Registrar may, if it appears to the Registrar to be necessary or expedient to do so in the interests of the defence of the Commonwealth, by written order, prohibit or restrict the publication of information about the subject matter of a design application.

             (2)  The Registrar is subject to any directions by the Minister in making an order under subsection (1).

             (3)  If an order is in force under subsection (1) in relation to an application, the application may be dealt with under this Act, but a design disclosed in the application must not be registered or published.

             (4)  If:

                     (a)  an order under subsection (1) has been revoked; and

                     (b)  at the date of the revocation of the order, the design would, but for the operation of subsection (3), have been registered or published;

the design must be registered or published within the prescribed period.

             (5)  Nothing in this Act prevents disclosing information about a design to an Agency or Commonwealth authority for the purpose of obtaining advice as to whether an order under this section should be made, amended or revoked.

109   Publication of information about designs

             (1)  A person commits an offence if:

                     (a)  the person is subject to an order under subsection 108(1); and

                     (b)  the person engages in conduct; and

                     (c)  the person’s conduct contravenes the order.

Maximum penalty: Imprisonment for 2 years.

             (2)  Subsection (1) does not apply if the person has the Registrar’s written consent.

Note:          A defendant bears an evidentiary burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ).

             (3)  In this section, engage in conduct means:

                     (a)  to do an act; or

                     (b)  omit to do an act.



 

Chapter 9 The Register

   

   

110   Simplified outline

                   The following is a simplified outline of this Chapter:

Chapter 9 deals with the Register of Designs.

The Chapter requires the Registrar to keep a Register and enter particular matters in it.

The Register is to be available for public inspection.

The Register can be amended in specified circumstances.

111   Registrar must keep Register

             (1)  The Registrar must keep at the Designs Office a Register of Designs.

             (2)  The following particulars must be entered in the Register in respect of a registered design:

                     (a)  the product or products in relation to which the design is registered;

                     (b)  the name of each person who is entitled to be entered on the Register as the registered owner of the design;

                     (c)  representations of the design;

                     (d)  whether or not a certificate of examination has been issued in respect of the design;

                     (e)  any other particulars prescribed by the regulations.

             (3)  All documents filed in connection with the registration of particulars mentioned in subsection (2) must be available for inspection at the Designs Office by any person during the hours when it is open for business.

112   Register may be kept by computer

             (1)  The Register may be kept wholly or partly by use of a computer.

             (2)  If the Register is kept wholly or partly by use of a computer:

                     (a)  references in this Act to an entry in the Register include references to a record of particulars kept by use of the computer and comprising the Register or part of the Register; and

                     (b)  references in this Act to particulars being registered, or entered in the Register, include references to the keeping of the record of those particulars as part of the Register by use of the computer; and

                     (c)  references in this Act to the amendment, alteration or rectification of the Register include references to the amendment, alteration or rectification of the record of particulars kept by use of the computer and comprising the Register or part of the Register.

113   Inspection of Register

             (1)  The Register is to be available for inspection at the Designs Office by any person at the times prescribed by the regulations.

             (2)  If the Register is kept by use of a computer, subsection (1) is taken to be complied with by giving members of the public access to a computer terminal that they can use to inspect particulars that are kept by the use of a computer.

114   Amendments of Register to record changes of ownership

             (1)  The registered owner of a registered design who assigns an interest in the design, or an assignee of an interest in a design, may ask the Registrar to record the assignment of the interest in the design.

             (2)  A person who becomes the owner of a registered design by devolution by will or by operation of law may ask the Registrar to record the person’s interest in the design.

             (3)  If a request is made under subsection (1), the Registrar must:

                     (a)  notify each other registered owner of the design of the request; and

                     (b)  record the assignment;

unless any of the other registered owners advises the Registrar, in writing and within the period prescribed by the regulations, that the other registered owner does not consent to the assignment.

             (4)  A request under subsection (1) or (2) must be made in accordance with the regulations.

115   Amendments of Register made to give effect to certain decisions

                   If:

                     (a)  the Registrar decides to revoke the registration of a design under section 50, 52 or 68; or

                     (b)  a court makes an order revoking the registration of a design;

the Registrar must make an entry in the Register stating that the registration of the design has been revoked and that the design is taken never to have been registered.

116   Reissue of certificates

                   After amending the Register, the Registrar must:

                     (a)  issue to the registered owner of the design a new certificate of registration; and

                     (b)  publish a notice in the manner prescribed by the regulations, specifying the amendments to the Register; and

                     (c)  if appropriate, publish the design.

117   Trusts not to be entered in Register

                   Notice of a trust, whether express, implied or constructive, must not be received by the Registrar or entered in the Register.

118   Evidentiary provision

             (1)  The Register is prima facie evidence of any particulars entered in it.

             (2)  If the Register is wholly or partly kept by use of a computer, a document issued by the Registrar producing in writing all or any of the particulars comprising the Register, or that part of it, as the case may be, is admissible in any proceedings as prima facie evidence of those particulars.

             (3)  A signed copy of, or signed extract from, the Register is admissible in any proceedings as if it were the original.

             (4)  In this section:

signed means signed by or on behalf of the Registrar.

119   Admissibility of unregistered interests

                   A document or instrument in respect of which an entry has not been made in the Register is not admissible in evidence in a court as proof of title to a design, or an interest in a design, except as follows:

                     (a)  in the case of an application under section 120;

                     (b)  if the court concerned directs that the document or instrument is admissible.

120   Rectification of Register

             (1)  A person aggrieved by:

                     (a)  the omission of an entry from the Register; or

                     (b)  an entry wrongly made in the Register; or

                     (c)  an error or defect in an entry in the Register; or

                     (d)  an entry wrongly existing in the Register;

may apply to a prescribed court for an order to rectify the Register.

             (2)  On hearing an application under subsection (1), the court may:

                     (a)  decide any question that it is necessary or expedient to decide in connection with the rectification of the Register; and

                     (b)  make an order it thinks fit for the rectification of the Register.

             (3)  The Registrar must be given notice of an application made under subsection (1), and is entitled to appear and be heard in proceedings in relation to the application.

             (4)  If the court makes an order under this section:

                     (a)  the court must give a copy of the order to the Registrar; and

                     (b)  the Registrar must give effect to the order.

             (5)  A person may not apply to a prescribed court under subsection (1) for rectification of the Register in relation to a design unless a certificate of examination has been issued in relation to the design.



 

Chapter 10 Administration

   

   

121   Simplified outline

                   The following is a simplified outline of this Chapter:

Chapter 10 contains administrative provisions.

The offices of Registrar and Deputy Registrar of Designs are established by this Chapter.

The Designs Office is also established.

122   Registrar

             (1)  There is to be a Registrar of Designs.

             (2)  The Registrar has such powers and functions as are conferred by this Act or any other Act.

123   Deputy Registrars

             (1)  There is to be at least one Deputy Registrar of Designs.

             (2)  Subject to any direction by the Registrar, a Deputy Registrar has all the powers and functions of the Registrar under this Act or any other Act, except the Registrar’s powers of delegation under section 124.

             (3)  A power or function of the Registrar under this Act or any other Act, when exercised or performed by a Deputy Registrar, is to be taken for the purposes of this Act or any other Act to have been exercised or performed by the Registrar.

             (4)  The exercise of a power, or function, of the Registrar under this Act or any other Act by a Deputy Registrar does not prevent the exercise of the power, or the performance of the function, by the Registrar.

             (5)  If the exercise of a power or function by the Registrar, or the operation of a provision of this Act or any other Act, depends on the opinion, belief or state of mind of the Registrar in relation to a matter:

                     (a)  that power or function may be exercised by a Deputy Registrar upon the opinion, belief or state of mind of the Deputy Registrar in relation to that matter; and

                     (b)  that provision may operate upon the opinion, belief or state of mind of a Deputy Registrar in relation to that matter.

124   Delegation by Registrar

             (1)  The Registrar may, by written instrument signed by the Registrar, delegate all or any of the Registrar’s powers or functions under this Act or any other Act to a prescribed employee, or a prescribed class of employees.

             (2)  A delegate must, if so required by the instrument of delegation, exercise or perform a delegated power or function under the direction or supervision of the Registrar or an employee specified in the instrument.

125   Designs Office

             (1)  There is to be a Designs Office.

             (2)  There is to be a sub-office of the Designs Office in every State.

126   Seal of Designs Office

             (1)  There is to be a seal of the Designs Office and impressions of the seal must be judicially noticed.

             (2)  The seal of the Designs Office may be kept and used in electronic form.

127   Registrar’s Powers

             (1)  The Registrar may, for the purposes of this Act:

                     (a)  summon witnesses; and

                     (b)  receive written or oral evidence on oath or affirmation; and

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

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

             (2)  The Registrar may protect the confidential status of documents or articles produced in confidence under paragraph (1)(c).

128   Recovery of costs

                   Costs awarded by the Registrar against a party are recoverable as a debt.



 

Chapter 11 Miscellaneous