Below is an excerpt from
John McKeown's January Mailer where he continues the
discussion concerning industrial design registrations.
In order to successfully register a design, the applied for
design must be original. Originality is not limited to Canada and
is universal. An individual cannot copy a design which has been
published outside Canada and then attempt to register it on the
basis that it is original in Canada.
The courts have said that use of the word "original"
suggests the exercise of intellectual activity to originate, for
the first time, something by applying a pattern, shape or ornament
to subject-matter to which it had not been applied before. The
design is the focus of consideration not the article to which it is
To be original there must be a substantial difference between
the design in issue and pre-existing designs. A minor change or
other insubstantial variation from pre-existing designs will not be
sufficiently original to allow a registration to be obtained.
Originality requires at least a spark of inspiration on the part of
the designer to create a new design or a new application of an old
The primary consideration in determining whether a design is
original is appeal to the eye. However, the eye should be that of
an informed consumer who is aware of what was common to the trade
for the class of articles to which the design is applied.
The application of an old shape or pattern to a new subject
matter may be original. It is also possible to take old designs and
combine them to form a new design for which a valid registration
may be obtained so long as the combination results in an original
design which is substantially different from any of the old designs
or any known combination of them.
Originality is assessed as of the date of the creation of the
design not the date of its registration. Prior publications
including patent specifications may be referred to. However, such
prior documents must contain clear and unmistakable directions to
make the article in the shape of the industrial design, in order to
A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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