Industrial design law in Canada protects the visual
features of shape, configuration, pattern or ornamentation which
are applied to a product. Functional elements are not
Think of the unique shape of a bottle. The functional elements -
such as a handle, a cap or lid - those elements could not be
protected by industrial design, but design elements like a curved
neck, or say a ridged pattern or other ornamental features could be
If the article or product has been "published" (i.e.,
it's been made public or offered for sale or use) then it
won't be eligible for protection. However, if the product or
article has been "published", there is a 12 month grace
period in which to obtain registration. So timing is important and
protection can be lost if the product launch is not coordinated
with IP rights protection.
For protection under the Industrial Designs Act,
registration is required, and lasts for 10 years from the date of
registration. Note that at the five year point, a maintenance fee
is required. After the expiry of the 10-year term, the design is
available for anyone in Canada to make, import, rent or sell.
Some points to consider for the use of industrial design law as
a tool for strategic IP protection:
industrial designs (also known as a design patent in the US)
can be a perfect fit for companies selling manufactured consumer
goods and packaged goods, but can also be a competitive tool for
service companies who are trying to protect a product or device
that is used or sold as part of a service offering
industrial design can help fill in the gaps between utility
patents, trademarks and copyright
when considering protection, focus on features that would
distinguish your product from competitors, and features that
competitors or knock-off infringers would want to copy in
order to mimic your products
the scope and period of protection is much narrower than the
scope of a utility patent, but it can be a very useful tool, and
much more cost-effective means of obtaining protection in the right
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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