Country: NZ
Tribunal: New Zealand Intellectual Property Office
Date: 18/12/2002
Case No.: IPONZ, D1/2002
Parties: AEP Industries (NZ) Ltd v. Scholle Industries Pty Ltd
Author: David Musker, R G C Jenkins & Co, with thanks to Philip Thoreau of Baldwins

In New Zealand, as formerly in the UK (until 2001) and in many other countries with similar design laws, it is customary or mandatory to file a “Statement of Novelty” indicating whether a design is for “Shape and Configuration” (i.e. three dimensional) or “Pattern and Ornament” (i.e. two dimensional) or both.
considered the effect of the statement in an action to cancel a design for a bag. The statement was directed, in commonly used wording, to features of “shape and configuration”. The applicant for cancellation claimed that “the registered design is not entitled to be registered for shape and configuration in the conjunctive”. The Hearing Officer (the Assistant Commissioner) held that the ground was not made out; the proprietor was entitled to claim the combination of shape and configuration. The proprietor applied to amend the statement to bring it into line with the wording of the New Zealand Act by changing “and” to “or”. This was refused, as “The amendment would appear to increase the scope of monopoly claimed in the design as accepted…”. Similar conclusions may apply to UK designs registered under the 1949 Act prior to December 2001 (as (the UK wording is similar), and to those of other countries influenced by the UK law.