What is the grace period?
The grace period allows a design to be shared publicly (under certain conditions) without impacting the ability to secure a design right in Australia. It can benefit those who:
- Accidentally publish their design
- Were unaware they needed to file for protection before disclosure.
For example, a designer who publishes a design on social media can still seek protection for the design within 12 months of when it was first posted.
The grace period came into effect on 10 March 2022, and only applies to:
- Applications filed on or after this date
- Disclosures that occur on or after this date.
You'll need to submit your application for a design right within 12 months of disclosing your design if you want to claim the grace period.
Is my design eligible?
When we assess your claim for the grace period, you'll need to tell us who published the design and when it was first publicly disclosed.
The design is eligible if the person who shared it is:
- The designer
- The owner of the design, such as an employer or successor in title
- Someone authorised by the designer/design owner, such as a marketing company
- Someone who obtained the design without permission. For example, if a competitor steals or an employee leaks the design and posts it on social media.
The design isn't eligible if it's been published:
- In the Australian Register of Designs or in a similar overseas design database
- Anywhere, including the internet or social media, before 10 March 2022.
How to claim the grace period
You can claim the grace period:
- When you apply for registration of your design
- Any time before your design is examined
- If you've requested an examination and are advised that there are issues with prior disclosures which fall within the grace period.
You'll need to submit a declaration that covers:
- When the design was first published and by who
- Relevant information about how the design was used or published.
To submit your declaration form:
- Create an account with or log in to online services
- Fill out the relevant form and include your declaration.
To help you get a clear idea of what a grace period declaration looks like, we've provided an example below.
After requesting the grace period, you may be asked to provide evidence that supports your claims of public disclosure within the grace period.
The most useful evidence is usually dated information or material that proves the design was published on a specific date.
Depending on your circumstances, this may include some of the following:
- Dated screen captures of publications
- Screen captures of social media accounts together with histories of administrator(s) or controller(s) of those accounts
- Copies of emails sent to staff or service providers showing when they were advised to make a design public
- Screen captures of websites controlled by the owner at the relevant time
- Declaratory confirmation that the owner controlled the social media account or website at the time of publication
- Sales information or marketing plans with dated information about product launches or release of marketing material
- Information and evidence showing there's been an unauthorised disclosure of the design
- Photographs or other media, such as dated news articles, that show public availability.
All declarations should be made by someone who had direct knowledge of the material and events.
If you've got questions, contact the person who examined your application. Their name and contact details will be provided on the report.