IPA design section-43-refusal-to-register--overview — IP Australia Designs Examiners' Manual – 12.1. Section 43 refusal to register: overview

Key legislation in this topic: Designs Act: s 43 ; Designs Regulations: reg 4.06 , sch 2 Key related topics: Section 43 of the Designs Act concerns designs that the Registrar must refuse. A design is assessed against s 43 matters during both the formalities assessment and the examination of a registered design. The Registrar must refuse to register certain types of designs (s 43). Under reg 4.06 , these are designs that: are for medals use the word Anzac could be mistaken for money could be scandalous or might reasonably be taken to be scandalous use the arms (i.e. coat-of-arms), flag, seal or emblems of a country, a state or territory, an Australian city or town, or an Australian public authority or public institution. ​​​​​​​ Formalities assessment The formalities officer assesses whether the design is in one of the non-registrable categories. If it is, the officer will send the applicant a formalities notice refusing the registration on the grounds of s 43. The relevant date for assessing compliance with s 43 is the date of registration of the design, not the filing date or priority date of the design, so we may refuse to register a design on s 43 grounds any time before the registration date. Examination Circumstances that arise after registration are not matters that would be considered under s 43. However, if the registered design is being examined, the examiner will consider s 43 in determining whether there is any ground for revocation of the design (s 65 ). One of the prescribed grounds is that, under s 43, a design should not have been registered (reg 5.02 ). If the examiner raises this ground, the matter will progress to a hearing.