17Certain things to be disregarded in deciding whether a design is new and distinctive

#### 17 Certain things to be disregarded in deciding whether a design is new and distinctive (1) For the purpose of deciding whether a design (the subject design) is new and distinctive, the person making the decision must disregard any of the following publications or uses that occur in the period of 12 months ending at the end of the day before the priority date in relation to the subject design: (a) a publication or use of a design (which may or may not be the subject design) by a relevant entity; (b) a publication or use of a design (which may or may not be the subject design) by another person or body that derived or obtained the design from a relevant entity. > Note: For relevant entity, see subsection (1D). (1A) Subsection (1) applies in relation to a publication or use that occurs on or after the commencement of Schedule 1 to the Designs Amendment (Advisory Council on Intellectual Property Response) Act 2021 (whether the 12‑month period referred to in that subsection begins before, on or after that commencement). (1B) Paragraph (1)(b) does not apply to the following publications: (a) a publication by the Registrar under this Act; (b) a publication by a person or body in a foreign country if: (i) the person or body has functions similar to the Registrar’s functions; and (ii) the publication is under a law of that foreign country relating to designs; (c) a publication by an agency or organisation that is established under, or in accordance with, an international agreement if: (i) the agency or organisation has functions including publishing designs to the public; and (ii) the publication is in accordance with an international agreement relating to designs or with a law relating to designs. (1C) For the purposes of paragraph (1)(b), if: (a) the registered owner of the subject design establishes that: (i) a relevant entity; or (ii) another entity in accordance with an authorisation from a relevant entity; published or publicly used a design (the first design and which may or may not be the subject design) before a particular publication or use of a design (the other design) by another person or body; and (b) the other design is identical to, or substantially similar in overall impression to, the first design; then it must be presumed that the other person or body derived or obtained the other design from the relevant entity, unless it is established that the other person or body created the other design without reference to, or knowledge of, the first design. (1D) For the purposes of this section, a relevant entity is: (a) the registered owner of the subject design; or (b) any predecessor in title of the registered owner; or (c) the person who created the subject design if that person is not covered by paragraph (a) or (b). (1E) If a use of a design is to be disregarded because of subsection (1), then that use must also be disregarded for the purposes of section 18. (2) For the purpose of deciding whether a design is new and distinctive, the person making the decision must disregard: (a) any information given by, or with the consent of, the registered owner of the design, or the registered owner’s predecessor in title, to any of the following, but to no other person or organisation: (i) the Commonwealth, a State or a Territory; (ii) a person authorised by the Commonwealth, a State or a Territory to investigate the design; and (b) anything done for the purpose of an investigation mentioned in subparagraph (a)(ii).