Canada: Industrial Designs

Last Updated: April 24 2014
Article by John McKeown

Below is an excerpt from John McKeown's April Mailer where he continues his comments about industrial designs.

The Application

The proprietor of a design may apply to register a design by paying the prescribed fees and filing an application with the Office of Commissioner of Patents. The application must include:

  1. a drawing or photograph of the design and a description of the design; and
  2. a declaration that the design was not, to the proprietor's knowledge, in use by any other person than the first proprietor at the time the design was adopted by the first proprietor.

There must be a written description of the design. The description must indicate whether the design relates to the appearance of the entirety of the article or to the appearance of a portion of the article. The description must make clear which of the visual features shown in the drawings comprise the design.

The description is important since it and the drawing or photograph of the design determine the extent of the exclusive right to which the proprietor is entitled.

A six month grace period for an application which has been filed in specified foreign countries is available. If the proprietor files an application for the same design in Canada within the grace period the Canadian application will obtain the benefit of the foreign priority filing date.

The Registration

An exclusive right for the industrial design may be acquired by registration of the design under the Act. During the existence of an exclusive right, no person may, without the licence of the proprietor of the design,

  1. make, import for the purpose of trade or business, or sell, rent, or offer or expose for sale or rent, any article in respect of which the design is registered and to which the design or a design not differing substantially therefrom has been applied; or
  2. do, in relation to a kit, anything specified in paragraph (a) that would constitute an infringement if done in relation to an article assembled from the kit.

After an application has been allowed a certificate will be issued by the Commissioner of Patents stating that the design has been registered in accordance with the Act. In the absence of proof to the contrary, the certificate is sufficient evidence of the design, the originality of the design, the name of the proprietor, the person named as proprietor being proprietor, the commencement and term of registration, and compliance with the Act.

A certificate that has been issued under the Act is admissible in evidence in all courts without proof of the signature or official character of the person appearing to have signed it.

A registration of a design can be obtained without incurring large expenditures although the process of obtaining a registration is slow. It is easier to bring an action for infringement of a registered industrial design than an action for passing off, which is the common law equivalent. In a passing off action it is necessary to show that there is goodwill associated with the design which can be difficult and time-consuming to do. This is not necessary in an infringement action.

Amendments to the Trade-marks Act

The Government has introduced a 2014 omnibus budget implementation bill, to enact policies that were introduced in the 2014 budget. The bill was tabled in Parliament on Friday, March 28.

Division 25 of Part 6 of the bill will amend the Trade-marks Act to, among other things, make that Act consistent with the Singapore Treaty on the Law of Trademarks and add the authority to make regulations for carrying into effect the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks. The amendments include the simplification of the requirements for obtaining a filing date in relation to an application for the registration of a trade mark, the elimination of the requirement to declare use of a trade mark before registration, the reduction of the term of registration of a trade mark from 15 to 10 years, and the adoption of the classification established by the Nice Agreement Concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks.

Click here to read the complete April mailer.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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John McKeown
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