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Protection in Canada Q&A
What is the nature of the protection afforded by an industrial design registration?
The right granted is an exclusive right somewhat akin to that of a patent for an invention. There are some distinctions, however, that may be significant in the event that enforcement of the right by lawsuit is contemplated, in which case patent counsel should be consulted.
The registration protects not only the specific design registered but also any fraudulent imitation of that design.
The term of protection is ten years from the grant and is not renewable. A maintenance fee must be paid to maintain the registration past the first five years of the term.
Who may apply to register the design?
Only a "proprietor", as defined by the Industrial Design Act, may apply. The proprietor is the author of the design, unless the author created the design for another person for good and valuable consideration (e.g., under a contract of employment), in which case such other person is the proprietor. The proprietor may assign the design, before or after registration, in which case the assignee then becomes the proprietor.
If a person sees an attractive design in some foreign country and no corresponding design has been registered in Canada, the person cannot register the design in Canada, because such person is not the author or proprietor of the design.
If the design has been created by two or more people, then they are joint proprietors of the design, and the design application should be filed in their joint names.
What information is required to prepare an industrial design application?
The name and address of the proprietor of the design (see the above definition of "proprietor").
Good drawings, a specimen, or good photographs of the design, and any variants of the design, from which formal drawings can be prepared (the Patent Office will sometimes accept 8" x 13" photographs of the design in lieu of drawings). Some savings to the client can be made if the client can provide drawings of the design conforming generally to official standards. Typically required are top plan, bottom, front and side elevation views, some of which can be substituted by one or more isometric or perspective views. Clean, simple lines are required.
A statement of the features of the design considered to be novel and original.
The date and circumstances of first publication, prior use, and sale (if any) of the design or articles embodying the design, in Canada or elsewhere.
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