LEGAL NOTICE: The presentation of information on this website is not individualized legal advice and should not be relied on as such. Articles are intended to offer general comments on legal developments of concern to individuals, business and legal professionals and are not intended to provide legal opinions. Readers should seek legal advice on the particular issues that concern them. © All Rights Reserved 2002-2014.
by Shaya Silber
New products are created every day. Some products have distinct design features that may have legal protection from others copying the design. This type of intellectual property is called “industrial design”. Industrial design is covered by a unique set of intellectual property rules.
According to the Industrial Design Act, industrial design means “features of shape, configuration, pattern or ornament and any combination of those features that, in a finished article, appeal to and are judged solely by the eye.” This means that the product must have visual elements that are original and unique. For example, a fabric with unique embroidery and/or patterns may qualify for protection under the Industrial Design Act. Ideas alone cannot be registered.
The next question is how to protect your designs. Industrial designs and copyright have some similarities, but are governed by a different set of rules. In Canada, industrial designs must be registered with the Canadian Intellectual Property Office (CIPO). Registration gives the registrant, the exclusive right to reproduce and sell their design for ten years. After the ten year period, anyone is free to reproduce and sell the design in Canada.
Unlike copyright, you are not automatically granted Exclusive Rights over your creation. If you do not register your design with CIPO, anyone can legally reproduce and sell your design without your permission.
Registration of a design only provides protection within Canada, and does not protect you abroad. For example, to protect your work from being reproduced and sold in the United States, you must meet US requirements as well.
Registration can be done at any time, provided that the design was not published or otherwise made public. However, once a design is made public (either shown to others, or offered for sale), you have a 12-month window to register. Furthermore, only the owner of the design may register. Contractors and employees are not permitted to register industrial designs.