Design Registration and Certificate Issuance

Design registration is the first step in protecting the unique visual features of your product. But registration alone does not give you the full power to enforce your design rights in Australia. To take that extra step, you need to obtain a certificate of examination.

Registration and Certification

Before a design is officially registered in Australia, it must pass through what’s known as the formalities assessment, i.e. an essential quality and compliance check conducted by IP Australia. This step ensures that the design application meets the legislative and procedural standards set out under the Designs Act 2003 and Designs Regulations 2004.

One can choose to request registration at the time of filing, or any time within six months from your filing date. If you don’t make this request, IP Australia will automatically begin the registration process once that six-month period expires, unless the application is withdrawn. Once registration is initiated, some basic details of your application, such as the applicant’s and designer’s names, are published on the Australian Designs Database. However, the representations (the actual visual features of the design) are not made public at this stage.

The formalities officer plays a key role in this process. Their task is to verify that the application is complete, compliant, and clear enough to proceed to registration. This check generally takes around eight weeks. The assessment includes verifying:

• whether the applicant is a legal person entitled to own the design,
• that all required details such as the applicant’s address, designer’s name, and address for service have been properly provided,
• whether the number of designs and associated fees align,
• that the representations clearly show the visual features claimed, and
• whether the design application identifies the product(s) to which the design applies so that it can be correctly classified under the Locarno system.

For design applications filed on or after 10 March 2022, these requirements are governed by the formal requirements instrument made under section 149A of the Designs Act, which replaced the earlier Schedule 2 to the Designs Regulations 2004. For older applications, Schedule 2 continues to apply.

The officer also ensures the application is reasonably clear and succinct, as required by law. This requirement was highlighted by the Full Federal Court in Keller v LED Technologies Pty Ltd [2010] FCAFC 55 at [35], where the Court observed that a registered design must be sufficiently clear and self-contained so that its scope can be readily determined. If a registration is unclear or inconsistent, it can create serious difficulties later, i.e. both in obtaining certification and in enforcing the design against infringers. Granting a design that fails to meet legislative requirements would undermine the integrity of the design rights system itself.

Poorly defined or inconsistent representations can make it difficult for IP Australia to examine the design in future or for competitors and the public to understand the scope of protection. Since registered design details are published and accessible through the Australian Design Search database, they serve as a public record that helps others determine their own legal position.

If the formalities officer identifies any deficiencies, i.e. for example, unclear representations, missing details, or inconsistencies, a formalities notice is issued under section 41 of the Designs Act. The notice explains the issues found and gives the applicant two months to fix them. If the applicant fails to respond within this timeframe, the application will lapse under section 33(1)(b) and regulation 3.14.

The applicant can, however, seek an extension of time under section 137 if a genuine reason prevents a timely response. The notice may also suggest possible amendments that could correct the deficiencies, such as refining the drawings or providing additional views. Any amendment must still comply with section 28 of the Act, meaning it cannot extend beyond the design originally filed.

If the applicant’s response does not fully resolve all issues, IP Australia may issue a further notice explaining which problems remain outstanding. In some cases, if the officer realizes that an issue was missed in an earlier notice, a supplementary notice will be sent, usually accompanied by an apology and, where appropriate, an opportunity for an extension of time.

Once all formalities are satisfied, the design proceeds to registration. At this stage, IP Australia registers the design and issues a Certificate of Registration, confirming that the design has been formally entered into the register. The registration is valid for an initial term of five years from the filing date, renewable once for another five years. Details of the registered design, including the visual representations, are published in the Australian Official Journal of Designs and made publicly available through the Australian Design Search database under sections 111 and regulation 9.01 of the Designs Regulations 2004.

This publication marks the point at which the design officially enters the public domain as a registered right. The owner now holds exclusive rights to the design, subject to the limitations of registration, but cannot yet enforce those rights in court. For that, certification through examination is needed, i.e. the next step in strengthening design protection.

How does a design become certified?

A design can only be certified after it has gone through an examination. Examination is a formal review conducted by IP Australia to determine whether the design is eligible for certification.

A request for examination can be made at any time after registration. While owners often make the request themselves, the law allows any person, i.e. including a competitor or other third party, to request examination. In some rare cases, a court can order the Registrar to conduct an examination, or the Registrar may decide to initiate one.

The Examination Process

During examination, an examiner looks closely at whether the registered design is eligible for certification. This involves several key steps-

• Assessing registrability– The examiner checks whether the design is new and distinctive compared to existing designs. This involves a search of the “prior art base” to see if the design was already known before its filing date (sec 15).
• Checking exclusions– Some designs cannot be registered under the Designs Act (sec 43(1), reg 5.02, sec 65(2)(b)). For example, designs that are purely functional or contrary to law are not registrable.
• Considering third-party material– Anyone can submit information or arguments about why a design should not be certified (sec 69). This may include prior art references or objections to distinctiveness. The examiner must consider this material even if it wasn’t accompanied by a request for examination.
• Dealing with multiple requests– Sometimes more than one party may request examination, or additional requests may be made even after a design has been certified. The examiner has to manage all requests consistently.

Examination is not always straightforward. The examiner can raise issues, invite responses or amendments from the owner, and then re-examine the design. This back-and-forth can happen multiple times before a final decision is made.

Timeframes and Outcomes

Once examination begins, it must be completed within the required time. Typically-

• If the examiner finds the design is registrable, they will issue a certificate of examination, and the design becomes certified.
• If the examiner identifies grounds for revocation, the owner has up to 6 months to address the issues (sec 48(1)(a), reg 5.04).
• If the problems are not resolved within that timeframe (and no extension is granted), the registration will cease.

In some cases, the period for completion can be longer, for example, if new grounds for revocation are raised or if court proceedings are ongoing. But unless the owner takes action, a design that cannot overcome objections risks being revoked.

Third-Party Initiated Examination

When a third party requests examination, the process looks slightly different. The request is fast-tracked and any material submitted under s 69 is considered by the examiner. If objections are raised, the examiner issues an adverse report to the design owner and also provides a copy to the third party.

The back-and-forth can continue, with the examiner issuing further adverse reports if needed. The third party can submit additional arguments, although the examiner cannot correspond with them directly. Instead, the examiner may reference the material in subsequent reports.

If the examiner ultimately finds no grounds for revocation, both the owner and the third party are notified that IP Australia intends to certify the design. At this stage, either party can request a hearing before certification goes ahead.

Notice of Intention to Certify

If the examiner is satisfied that the design can be certified, but other interested parties are recorded in the register (such as co-owners, licensees, or secured creditors), IP Australia will first issue a notice of intention to certify.

This notice is sent to the design owner(s), the third-party requester (if applicable) and anyone else recorded as having an interest in the design

The notice explains why certification is being considered, sets out any proposed amendments, and gives all parties an opportunity to request a hearing. If no hearing is requested by the deadline, the certificate is issued. If a hearing is requested, the matter is referred to the Oppositions and Hearings team.

Hearings and Contested Examinations

If there is disagreement about whether a design should be certified, a hearing may be held. Hearings provide a formal opportunity for the owner (and sometimes third parties) to present their case.

During a hearing, the Registrar or a Hearing Officer will review the arguments, evidence, and examination history. Possible outcomes include-

• Certification if the objections are overcome.
• Revocation if the Hearing Officer is satisfied that valid grounds for revocation exist.
• Amendment and certification if the design can be modified to remove grounds for revocation.

Once revocation is finalized, the registration ceases, and the design owner loses rights to the design.

Last-Minute Responses and Extensions

Owners sometimes file responses very close to the end of the 6-month examination period. In these cases, examiners will make every effort to consider the late response. Owners can also file a precautionary request for hearing in case the examiner is not persuaded.

This ensures that rights are preserved while the examiner completes their review. If certification is refused, the owner can pursue the hearing option instead of losing their design outright.

Extensions of time may also be available under sec 137, but they are not automatic and usually require a valid reason.

Revocation During Examination

Although uncommon, IP Australia can revoke a design during examination if it is clear that the process has reached an impasse. This means all grounds for revocation have been raised and explained, the owner has had a fair opportunity to respond and amendments or submissions have not resolved the issues

In such cases, IP Australia will issue a notice of intention to revoke, giving the owner 21 days to request a hearing. If no hearing is requested, the registration is revoked.

Outside the examination process, designs can also be revoked if the owner surrenders them, if a court orders revocation, or if there are disputes over entitlement.

Certificate of Examination

If the examiner (and, where applicable, the Hearing Officer) is satisfied that no grounds for revocation remain, IP Australia issues a certificate of examination.

Certification means the design is now enforceable in court. The owner has the full right to take legal action against infringers, stop unauthorized use, and protect the commercial value of their design.

For business owners, this is the critical point at which the design right becomes a practical tool for protecting market position and deterring competitors.

So, while registration secures a place for your design on the public record, certification transforms that registration into a powerful legal right. Without certification, you cannot sue infringers, which means your design right is effectively unenforceable.

Work with us

Seeking certification is often a strategic choice. For some businesses, certification may only be necessary when infringement is suspected. For others, certification provides immediate peace of mind and a stronger deterrent against copycats.

Either way, the process ensures that your design has been tested against the legal standards of newness and distinctiveness, giving you confidence in its enforceability.

At our firm, we guide clients through the full lifecycle of design protection, i.e. from registration to certification and, if needed, enforcement. If you’re considering certification or have received an examination report, professional advice can make the difference between securing enforceable rights and losing them. So, contact now for a free consultation.