Superior visual aesthetics are an important competitive
advantage in many market sectors, including fashion, housewares and
Intellectual property protection has long been available for
visual aesthetics, under names such as design patent and design
registration; however, it has been cumbersome and expensive to
pursue and maintain in multiple jurisdictions. Conventionally,
countries have had their own substantive and procedural design
regimes, with little harmonization between them. For example,
design representations (photographs, line drawings, CAD renderings)
required for registration in one jurisdiction might be completely
unacceptable in another, thus requiring duplication of effort and
Particularly in a fast-fashion market, design protection must be
relatively quick and inexpensive to acquire in order to be
In response to the above shortcomings, a harmonizing treaty
called the Hague Agreement Concerning the
International Registration of Industrial Designs
(the "Treaty") has been gaining momentum. The Treaty has
long covered much of Europe, and within the last year Japan, Korea
and the United States have all become members. Canada is amending
its design laws with the goal of becoming a member around 2016.
The Treaty enables a design owner to file a single international
design application instead of (or as well as) national design
applications, if the owner is a national of a member jurisdiction
or has a domicile or real and effective industrial or commercial
establishment within the territory of a member jurisdiction. The
international application designates the jurisdiction in which
protection is sought, and is subject to streamlined international
examination and maintenance, instead of multiple national
In harmonizing its design laws for ascension to the Treaty,
Canada will be changing the expiration of its design registrations
from ten years after the issue date to fifteen years after the
filing date. Although currently Canadian applications are
non-public until issuance, harmonization requires publication not
later than thirty months after the earlier of the Canadian filing
date and any priority date. Canada is also using this opportunity
to consider other updates to its design laws, for example allowing
colour to be a protectable design element.
This harmonization process is well underway, but many aspects
are still undecided and uncertain. If visual aesthetics are an
important completive advantage in your market or your business, you
should keep abreast of the harmonization process.
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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