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Legal Guide


General

Under the Industrial Design Act (Canada), an original “design” of an article (“features of shape, configuration, pattern or ornament and any combination of those features that, in a finished article, appeal to and are judged solely by the eye”) may be registered as an industrial design. Registration does not extend to methods or principles of construction or to the mere configuration of the article; there must be some form of ornamentation to which the protection of this statute may apply.

Registration

In order for an industrial design to be protected, the design must be applied for within one year from the date of first publication in Canada. Offering or making the design available to the public constitutes publication.

Rights conferred by registration

Registration gives the proprietor the exclusive right to apply an industrial design to an article for purposes of sale. The duration of an exclusive right for an industrial design is 10 years from the date of registration, subject to the payment of such periodic maintenance fees as may be prescribed (presently, at the fifth anniversary).

If any person without authorization applies or imitates any design for the purpose of sale, an action for damages may be maintained by the registered proprietor. A court may also award an injunction, recovery of infringing material and an accounting for profits. In addition to civil actions, fines may be imposed for criminal offenses under the Industrial Design Act.

Marking

In the event that a design is applied to an article or imitated by a third party without the consent of the proprietor, the proprietor’s remedy will be limited to an injunction (in other words, no damages will be recoverable), unless all or substantially all of the proprietor’s articles to which the industrial design registration pertains, or the packaging or labels for such articles, were marked with the capital letter “D” in a circle and the name or the usual abbreviated name of the proprietor.

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