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Trade Mark |
Procedure for Registration,
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DESIGN (FAQ) |
| 1 | What is an Industrial Design? |
| 2 | Must I register my industrial design in order to be protected? |
| 3 | How long does registration last ? |
| 4 | What cannot be protected by an industrial design? |
| 5 | Can I register my design as an artistic work under the Copyright Act? |
| 6 | If I register my design in Canada, am I protected in other countries ? |
| 7 | Is there a time limit for filing an application for registration? |
| 8 | What do I need in order to apply for industrial design registration ? |
| 9 | What type of description do I need to include? |
| 10 | What type of drawings or photographs are necessary? |
| 11 | If I have a registered design, do I have to put any marking on the articles to indicate this? |
| 12 | If I see a good design outside Canada and it does not appear to be on the market in Canada, can I register that design under my name here? |
| 13 | How will the Industrial Design Office know if I did not originate the design? |
| 14 | Can anyone make a search through the Industrial Design Office records to see what has been registered previously? |
| 15 | May non-Canadians register their designs in Canada? |
| 16 | If I sell or purchase rights to a design, do I need to inform the Industrial Design Office ? |
| 17 | Would the Industrial Design Office stop someone else from infringing my design? |
An industrial design is the features of shape, configuration, pattern or ornament (or any combination thereof) applied to a finished article. It may be, for example, the shape of a table or the ornamentation on the handle of a spoon. The article can be made by hand, tool or machine.
Yes, there is no protection without registration. Once registered, industrial designs are available for public inspection. Keep in mind that it is best to apply for registration before marketing your product. If your design is an artistic work, it is automatically protected by a copyright, and you can register it as such. However, if you use the design as a model or pattern to produce 50 or more manufactured articles, you can protect it only by an industrial design registration.
Obtaining registration for an industrial design will give you exclusive rights for a period of ten years from the date of registration, subject to payment of a maintenance fee during the first five years.
The following cannot be protected:
If your design was originally created as a work of art, it would have been protected automatically under the Copyright Act. But once you use it, or intend to use it, as a model or pattern to produce more than 50 single useful articles or sets of articles, it usually is considered to be an industrial design, which can only be protected under the Industrial Design Act. Since the legal distinction is a fine one, it is advisable to seek legal advice on this matter (as there are some exceptions to the preceding).
No. You can obtain protection in other countries only by filing in each country separately.
No, unless there has been "publication" (i.e. the design has been made public or offered for commercial sale or use anywhere in the world). In that case, you must file an application within twelve months of the publication date.
You should send in a completed application form, at least one drawing or photograph and the fee. Your application must be in accordance with the form entitled " Application for Registration of a Design". You can also file electronically.
The description does not have to detail every aspect of the design, but it must state clearly what the design is and what its original features are. You should describe the visual aspects of the design only, i.e., shape, configuration, pattern or ornament (or any combination thereof). Do not refer to how the article functions or performs. For a more detailed explanation of descriptions consult the " Practice Notice on Descriptions".
Whether you submit drawings or photographs, they must be in black and white, on good quality paper or photographic paper respectively, at least 21 cm x 28 cm (8" x 11") and not more than 22 cm x 35 cm (8 1/2" x 14"). They must show the design features clearly and be easy to reproduce by photography, electrostatic processes, photo offset and microfilming.
Marking is not required. However, it is helpful in the event of a court proceeding. If there is no mark, the court cannot award a remedy other than an injunction, which will prevent further infringement on your design. The proper mark is a capital "D" in a circle and the name, or abbreviation thereof, of the design's proprietor on the article, its label or packaging.
Yes, if you have acquired ownership of the design and it has not been published anywhere in the world for more than one year.
The examiner searches through records of registered Canadian designs and published designs from any source to determine whether anyone else already owns the design, or one so similar that yours would be considered an imitation. If so, your application will not be acceptable for registration. If the search does not disclose a similar design, your declaration of originality will be accepted and the design registered provided all other requirements are met. It should also be noted that the courts have the power to overturn an invalid declaration at a later date.
Yes, anyone can conduct a search free of charge. All materials are located in the Industrial Design Office, in Hull, Quebec. Design Office staff will give you the basic information you need to do the search. You may also obtain copies of drawings and other documents at a nominal fee (see Tariff of Fees).
Yes, provided that Canadian requirements are met. Registrations of other countries offer no protection in Canada although they may be used as prior art when searching originality.
iIt is advisable to register the sale of rights, or "assignment," as it is known, with the Industrial Design Office. Many legal text writers have expressed the opinion that registration of an assignment would be necessary before the new owner could sue anyone for infringing the design.
No. This responsibility rests with the owner of the design. You must start any legal action within three years of the alleged offence.
