Author: Sarah Nadon - Law Student
Edited By: Ryan Carson

The Industrial Design Act defines an industrial design to be the “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.”¹ When you register your industrial design, you get enforceable protection under the Industrial Design Act for a period of up to 10 years; however, once the rights are yours, you can do what you wish with your design.

Similar to patents, the protection of an industrial design arises only upon the registration of the actual design; therefore, it is essential to register your industrial design as soon as possible. Again, similar to patents, the owner of the industrial design may assert their rights against a person who later creates a similar design. While patents and industrial designs are similar, patents are intended to protect a new invention, whereas an industrial design protects an item’s shape and appeal. In other words, the Industrial Design Act protects the shape of the item and not its function. Unlike trademarks, industrial designs are not renewable but can be protected for a period of up to 10 years.

An infringement action may be brought by the proprietor of the design or by a licensee.² To prove infringement on an industrial design, the plaintiff bears the burden to prove that the defendant’s design is not substantially different than the plaintiff’s and that the defendant, without consent of the plaintiff, made an industrial design similar to the one that is currently registered.³

In an infringement proceeding, the court may order remedies depending on the circumstances at hand. The remedies can include an injunction, damages, recovery of lost profit, or for the disposal of any infringing item.

Obtaining protection under the Act can help protect the shape or the aesthetic aspects of an invention and help avoid costly legal bills down the road. It is recommended to discuss how to register your industrial design with a legal expert.

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The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

References

¹ Industrial Design Act, RSC 1985, c I-9
² Industrial Design Act, RSC 1985, c I-9 S.15
³ Industrial Design Act, RSC 1985, c I-9 S.11