Clarify ambiguity in section 19 of the Designs Act

Issue summary

Currently, section 19 of the Designs Act 2003 lists the factors to be considered in assessing whether a design is substantially similar in overall impression to another design. However, two different approaches to determining who satisfies this standard have emerged in Australian case law which has led to uncertainty and increased costs for stakeholders and in design litigation.

Amendment of section 19 may clarify the ambiguity and ensure more predictability for examination of designs.

History

• Policy Development 4 September 2017
• Consultation 31 October 2019 to 20 December 2019
• Policy Development 20 December 2019 to 12 May 2020
• Legislative drafting 12 May 2020 to 23 July 2020
• Consultation 23 July 2020 to 28 August 2020
• Legislative drafting 28 August 2020 to 2 December 2020
• In Parliament 2 December 2020 to 30 August 2021
• Royal Assent 10 September 2021
• Completed 10 September 2021

Comments

The part of this policy issue related to the standard of the informed user is included in the Designs Amendment (Advisory Council on Intellectual Property Response) Act 2021 and commenced on 11 September 2021.

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