Hysential Pty Ltd - [2025] ADO 2

DESIGNS ACT 2003

DECISION OF A DELEGATE OF THE REGISTRAR OF DESIGNS WITH REASONS

Re:Registered design number 202414139 - Fluid Hygiene Dispenser - in the name of Hysential Pty Ltd

Delegate:

Benjamin Goldsworthy

Representation:

Owner: Steven Ugrinovski and Neeraj Aumer

Decision:

2025 ADO 2

Designs Act 2003 (Cth) – request for amendment – considered under reg 9.05 of the Designs Regulations 2004 (Cth) – no clerical error or obvious mistake – amendment under reg 9.05 not allowable – request for amendment refused.

Background

This matter concerns a request made under the Designs Regulations 2004 (Cth)[1] to amend a registered design (‘Design’), the details of which I extract below:
Design number: 202414139
Owner: Hysential Pty Ltd (‘Owner’)
Product: Fluid Hygiene Dispenser
Filed: 20 June 2024
Certificate of examination issued: 22 October 2024
Representations: see Schedule 1 (‘Representations’)
[1] Unless I have otherwise specified, throughout these written reasons a reference to a section of an enactment is a reference to a section in the Designs Act 2003 (Cth) and a reference to a regulation of an enactment is a reference to a regulation in the Designs Regulations 2004 (Cth).
The Design was registered on 28 July 2024. The Owner requested examination of the Design. On 17 September 2024, the Owner requested that the Design be amended to substitute the representations at Schedule 1 to these written reasons. On 18 September 2024, a delegate of the Registrar of Designs (‘Registrar’) replied in writing in the following terms, giving the Owner four weeks to respond:
Problem with Supporting Documentation
The request was to amend the design right to correct an error. However, no supporting documentation has been provided to clearly show that a clerical error or obvious mistake occurred. This means there is not enough information for the amendment to be made.
What you can do
Please submit the relevant supporting document, making sure it clearly demonstrates a clerical error or obvious mistake.
On 22 October 2024, the Design was examined, and a certificate of examination was issued to the Owner. On 22 October 2024, the Designs Office contacted the Owner by letter noting that as the deadline for responding had passed without any response, the request for amendment had been refused.
On 26 October 2024, the Owner requested to be heard on the refusal to amend the Representations. The hearing request was accompanied by a letter outlining the proposed substitutions to be made to the Representations (‘Letter-1’).
To offer further clarification regarding the requirements for amendments under the Act, a delegate of the Registrar contacted the Owner on 12 December 2024 by letter and thereafter by telephone. Thereafter, the Designs Office set the matter down for a hearing.
On 14 February 2025, I directed that the Owner file any evidence and/or written submissions by 5 March 2025. The Owner did not file any documents by this date.
On 12 March 2025, as a delegate of the Registrar, I heard this matter by video conference. The Owner was represented…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] ADO 2
Decision Date: 19 June 2025

CaseChat Overview and Summary

Hysential Pty Ltd applied to the Designs Office to amend the registered design of their Fluid Hygiene Dispenser. The dispute arose because the company believed there had been an error in the representations submitted during the registration process, and they sought to correct these representations. The decision was made by Benjamin Goldsworthy, a delegate of the Registrar of Designs, under the Designs Act 2003 and the Designs Regulations 2004. The key issue was whether the request for amendment met the criteria for a clerical error or an obvious mistake, as outlined in regulation 9.05 of the Designs Regulations.

The court examined whether the error alleged by Hysential Pty Ltd constituted a clerical error or an obvious mistake. A clerical error involves a mechanical process of writing or transcribing where the intended content is not accurately captured. The company argued that they had mistakenly filed incorrect representations, but they did not provide specific evidence to support this claim. There were no detailed explanations or corroborating materials to substantiate the assertion of a clerical error. Similarly, for an obvious mistake, the error must be apparent on the face of the document to an instructed reader. The court found that the error, if any, was not apparent from the representations themselves, nor was it clear how it could be corrected. The proposed changes were arbitrary and did not align with what an instructed reader could reasonably deduce as an error.

Based on the evidence presented, the court concluded that neither a clerical error nor an obvious mistake had been demonstrated. The request for amendment did not meet the requirements of regulation 9.05. Therefore, the delegate of the Registrar refused the request to amend the design representations.

Orders