In its 2015 'Review of the Designs System' in Australia, the former Advisory Council on Intellectual Property (ACIP) recommended (Recommendation 9) the automatic publication of designs at six months after the filing date, with the possibility to request publication earlier if desired. An amendment to the innocent infringer defence, in subsection 75(2) of the Designs Act 2003, would accommodate this change.
Currently in Australia, design registrations are usually published within two to three weeks. Other jurisdictions allow design applicants to defer publication of their design. This enables applicants to obtain a priority date, but without having their design made available to the public.
Deferral of publication allows the designer to keep new designs confidential until they are ready to launch in the market. However, the downside of deferred publication is reduced certainty for other stakeholders in the market. The Australian Government noted the recommendation in its response to ACIP in May 2016, and committed IP Australia to carrying out further consultation.
Policy development 04-Sept-2017
Consultation 31-Oct-2019 to 20-Dec-2019
Policy Development 20-Dec-2019 to 12-May-2020
Legislative drafting 12-May-2020 to 23-Jul-2020
Consultation 23-Jul-2020 to 28-Aug-2020
Legislative drafting 28-Aug-2020
From 23 July to 28 August 2020 IP Australia consulted on an exposure draft on an exposure draft of the Designs Amendment (Advisory Council on Intellectual Property Response) Bill 2020 (Designs Bill) and the Designs Amendment (Advisory Council on Intellectual Property Response) Regulations 2020 along with the accompanying draft explanatory memorandum and draft explanatory statement.
The Designs Bill aims to deliver early benefits to designers as part of a broad range of design reforms and initiatives being undertaken by IP Australia.
Further initiatives are being considered under the Designs Reform Project which is founded on a holistic review of the design ecosystem and its impact on the Australian economy. We will continue to engage with stakeholders on this work.
Prior to the consultation on the exposure draft of the Designs Bill, we conducted a public consultation from 31 October to 20 December 2019 on the policy issues being considered for inclusion in the Designs Bill.
The submissions received during the consultation along with our response to those submissions are available on our Consultation Hub.
As a result of our 2019 consultation, introducing automatic registration of the design after 6 months from the filing date will be progressed as well as amendment to the innocent infringer defence.
However, deferral of publication will not be progressed as a similar effect can be achieved by removing the publication option (refer to policy ID: 67). Our reasoning and further details can be found in our response to the consultation.