Proposed amendments to the Australian design right laws are currently before Parliament for consideration and, if accepted, would provide more flexibility for designers and companies seeking design registrations and for companies defending against an infringement action in Australia.
For example, the proposed amendments include a 12-month grace period, which would allow an entity to file a design registration application for up to a year after that same entity has publicly disclosed the design. While it remains preferable to file a design application before any public disclosure, this grace period would provide some leeway if there was such a disclosure before filing.
Also proposed is a prior use infringement defense. With this defense, someone who starts using or selling a product before another designer submits a design application would be allowed to continue using or selling the product without infringing the later design registration.
Another proposed change involves exclusive licensees. Currently, only the design right's owner can bring an infringement action in Australian. Under the proposed changes, an entity that has licensed all of the rights to a design would be permitted to bring an infringement action.
We will continue to track the progress of these proposed amendments and provide further updates.
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