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Canadian industrial design registrations (similar
to the United States "Design Patents") protect original features of shape,
configuration, pattern or ornamentation applied to manufactured articles. The industrial design registration protects
not only the specific design registered, but also any design not differing
substantially therefrom.
In Canada, the term of industrial design protection
is ten years from the date of grant of the Canadian industrial design
registration, subject to payment of a maintenance fee as discussed below.
The United States design patents have a fourteen-year non-renewable term,
counting from the date of grant of the design patent.
In Canada, an application for industrial design
registration must be filed no later than one year after the earliest
publication of the design. "Publication" includes distributing samples of an
article bearing the design, selling or exhibiting such articles for sale,
publishing the design in advertising or other printed material of any sort,
public use of articles bearing the design, etc.
The United States has a similar one year "grace period." Many other
jurisdictions have no grace period whatever. Any public disclosure of the
design, before filing an application for industrial design registration, can
result in loss of protection in such countries.
Time and budget permitting, it may be wise to
conduct a search before applying to register a design. If the same or a
similar design has been disclosed, anywhere in the world, the design may not
be protectible.
Worldwide searches are impractical, so a limited search is usually made in
only one country.
No search will "guarantee" the registrability of any design. The object is
to make a reasonable assessment of the prospects for obtaining worthwhile
design protection. Search results can also be useful in preparing an
application for design registration.
Design registrability searches typically involve a time-consuming examination of design
illustrations on file in the office in which the search is conducted
(usually the Canadian Industrial Design Office or the United States Patent
and
Trademark Office).
Searches need not be confined to the records of an Industrial Design or
Patent Office. Trade catalogues published anywhere and at any time by
manufacturers of similar articles are often worth searching for relevant
prior art designs.
In some cases examiners raise objections that are usually answered by
amendment of the application, argument, or both. If not satisfactorily dealt
with, such objections can be fatal to the design application, but that is
quite rare. Further, in most countries various appeal procedures are
available.
If the examiner is ultimately satisfied with the merits of the application,
it is allowed and an industrial design registration certificate is issued.
It takes about six months to one year after filing of the application
(longer in some countries) to "prosecute" the application through to the
grant of an industrial design registration.
Most countries belong to the "Paris Convention."
This allows a design applicant to claim priority in respect of an
earlier-filed design application. Applications filed in such countries
within six months of the filing date of the original application are treated
as though they were filed on the original filing date.
As previously indicated, to obtain valid design protection in most countries
it is essential to file an application to register the design before the
design is publicly disclosed. An important exception applies if priority can
be claimed as above. It is normally sufficient to file priority-claiming
applications in most countries within six months of the date on which the
earliest application was filed, provided that the earliest application is
itself filed before any public disclosure of the design anywhere in the
world. |
