Jdn Nominees Pty Ltd

[1986] ADO 3

In the Matter of the Designs Act 1906

‑ and ‑

In the Matter of an Application to Extend the Term of Registration of Registered Design No. 89821 in the Name of JDN NOMINEES PTY. LTD.

‑ and ‑

In the Matter of a Notice Lodged Pursuant to Section 27A(4) of the Act.

DECISION OF THE REGISTRAR OF DESIGNS:
         These matters were set down to be heard in Sydney on 12 March, 1986 following advice to the registered proprietor that, on the basis of the Notice and related material lodged, the Registrar intended to refuse the application to extend the term of registration.  The registered proprietor was represented by Mr. David Catterns of Counsel and Mr. Peter Pearson, Patent Attorney of Edwd. Waters & Sons.
Mr. Catterns referred me to the following decided cases in the course of his submissions on behalf of the proprietor : Dalgety Australia Operations Limited v. F.F. Seeley Nominees Pty. Limited (by Order dated 25 February, 1986, in the Federal Court of Australia, South Australia District Registry, as yet unpublished), Malleys Ltd. v. J.W. Tomlin Pty. Ltd. (35 ALJR 352), D. Sebel & Co. Ltd. v. National Art Metal Co. Pty. Ltd. (10 FLR 224) and Rosedale Associated Manufacturers Ld. v. Airfix Products Ld. (74 RPC 239).

Having considered the arguments and principles expressed in these cases, and noted Mr. Catterns submissions on the case in suit, I am satisfied ‑ 2 ‑

that the material provided in the section 27A(4) Notice does not constitute prior publication of the subject design.  In the words of Mr. Justice Fisher in the unpublished decision referred to above: "The design consists of the totality of the visual features of the (video display cabinet)".  While there is some similarity between the cabinet displayed in the leaflet marked Exhibit A to the Len Adelman Declaration, and the subject design, in that both are cylindrical and have an opening for the video display, nevertheless there are sufficient differences in the relative proportions of the 2 cabinets, the shape of the openings in each (one being a rectangle with rounded corners, the other having its 2 sides and upper edge straight and at right angles to each other, and its bottom edge curved, resulting in an irregular shape), the presence in the subject design of a rim at top and bottom similar to a soft drink can, and the inclusion in the other cabinet of a separate console facility, to constitute, in my opinion, a new and original design within the meaning of section 17 of the Act.  I do not consider that these differences are immaterial or features commonly used in the relevant trade, nor that the subject design is an obvious adaptation of the earlier cabinet.
         Judged by the eye, as this matter must be, I am satisfied that the subject design represents a departure from prior art as disclosed by the material lodged pursuant to section 27A(4) of the Act.  Accordingly, I allow the application to extend the term of registration and direct that it be so extended in accordance with section 27A(8).

(S. FARQUHAR)