IP Basics

Industrial Design Basics and Registration Procedure in Canada

What is an Industrial Design?

An industrial design consists of features of shape, configuration, pattern or ornament, or any combination of these features in a finished article that appeals to and is judged solely by the eye. Thus, industrial designs pertain to esthetic aspects of an article. In contrast, patents cover functional features. The two types of rights may co-exist in one article. As an example, if someone invented a new stapler with an esthetically pleasing handle, a patent could be obtained on the inventive mechanical features of the stapler, and industrial design protection could be obtained on the shape of the handle.

Industrial design rights are obtained upon registration, giving the proprietor the exclusive right to use that design for a period of 10 years from the date of registration. The exclusive right includes the right to apply the design to an article for importation, rent or sale.

Why Register an Industrial Design?

The way in which to obtain protection for purely esthetic features of shape, configuration, pattern or ornament (and hence to prevent others from using such features) is to file an application to register these features as industrial designs. Such rights do not arise upon creation, but only upon registration. Alternately, some designs may become distinctive through extensive use and be capable of registration under the Trade-marks Act as 'distinguishing guises'.

Marking of an Industrial Design

Once an industrial design has been registered, the articles to which the design is applied (or the labels or packaging associated with those articles) may be marked with a capital letter D in a circle, together with the name of the owner of the design.

Application for Registration of an Industrial Design

To obtain a registration under the Industrial Design Act, an application for registration of an industrial design must be filed with the Industrial Design Office of the Canadian Intellectual Property Office. The application must include the requisite government filing fee and must set out certain information, including clear drawings of the design.

The application will be examined to ensure that the design is original. A design will be considered original if it has not been published more than one year before the filing date of the application, and if it does not so closely resemble a design which has already been registered so as to be confused with it. A search can be done prior to the filing of the application to determine any potential obstacles to registrability.

Once the application has been approved and the registration fee paid, a certificate of registration will be issued.

Summary

1. Industrial designs protect purely esthetic aspects of shape, configuration, pattern or ornamentation.
2. The way to obtain the exclusive right to use an industrial design is to obtain a registration.
3. Prior to filing an application to register an industrial design, a search can be done to assess whether the design is registrable.

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