Warning about Unnecessary or Alternative Methods
for Obtaining Intellectual Property Protection
About Industrial Design
Features of shape or ornamentation that give a manufactured article visual appeal are called "industrial designs". Some objects that are the subject of industrial designs can also be protected by copyright, and some, in certain cases, can even be protected by trade-mark rights. However, a large number of such objects can only be protected by obtaining an industrial design registration, which has a term of ten years. Among the types
of articles often protected by design registration are containers, furniture, home appliances, clothing items, and fashion accessories. Unlike a patent, an industrial design registration does not protect the functional features of an article, though sometimes both types of protection are available for a newly developed article of manufacture that incorporates both aesthetic and utilitarian
Why seek design registrations?
A design registration offers the opportunity for legal redress against others who subsequently produce articles with the same or very similar appearance. Often a competitive edge can be found in the marketplace through a new shape or new ornamentation for a known product; the model that catches the consumer's eye is more likely to sell. An industrial design registration may be the only protection available for such developments. Even where copyright is available, a design registration can provide an enhanced scope of protection.
Preparing an application
While in some countries design protection must be sought before any disclosure of the design has occurred, a Canadian industrial design application can be filed up to one year after the first publication of the design anywhere in the world. The application requires formal drawings and a written description of the features of the design. Preparing these can be very difficult, and the public is well advised to seek the help of a professional experienced in handling industrial design cases, and who thus knows what is required, can write a suitable description, employs competent draftsmen to prepare the drawings, and is able to arrange the filing of corresponding foreign applications.
The nature of design protection varies from country to country. Throughout the world, the law governing industrial designs is very complex, in part because designs merge both form and function. It would be imprudent for a person without legal training in the field to try to make an assessment of whether copyright or trade-mark rights may be available to protect a particular design, or whether the design may incorporate patentable features, and whether in any event an industrial design registration should be sought. If you have created a new design, you should consult with a patent agent or lawyer who has experience in intellectual property matters to ensure that potentially valuable rights are not lost.
© 2013 Intellectual Property Institute of
Canada, Ottawa, ON 613.234.0516