New amendments to the Design Act 2003 (Cth) have been implemented based on recommendations from the Advisory Council on Intellectual Property. 

The new regulations, effective from 10 Sept 2021 introduce a ‘grace period for designs’ which is a 12-month period for designers who make their designs publicly available before they file an application for registration. 

Importantly, the grace period will only date back to 10 September 2021, so any design application filed before then will have technically already been disclosed to the public and will not have the protection of the grace period. 

The registration of a design can only be revoked on lack of entitlement grounds if the court is satisfied that it is just and equitable to do so. However, a court is able to order the rectification of the Design Register to correctly note the true owner of the design. This development allows the court to transfer ownership of a registered design to the true owner, maintaining validity of the design and giving the true owner the ability to enforce its design rights rather than cancelling the design registration. 

Another update to the Act is that whether a design in considered distinctive, or is infringed 

by another design/product is now assessed by the standard of a ‘familiar person’ who is merely familiar with the product. This marks a change from the previous standard of ‘informed user.’ 

Moreover, under these new amendments exclusive licensees can bring proceedings to enforce infringement of certified designs. 

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