Industrial Design Act (R.S.C., 1985, c. I-9)

Act current to 2016-08-01

Industrial Design Act

R.S.C., 1985, c. I-9

An Act respecting industrial designs

Short Title

Marginal note:Short title

 This Act may be cited as the Industrial Design Act.

  • R.S., c. I-8, s. 1.

Interpretation

Marginal note:Definitions

 In this Act,

article

objet

article means any thing that is made by hand, tool or machine; (objet)

design or industrial design

dessin

design or industrial design means 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; (dessin)

kit

prêt-à-monter

kit means a complete or substantially complete number of parts that can be assembled to construct a finished article; (prêt-à-monter)

Minister

ministre

Minister means such member of the Queen’s Privy Council for Canada as is designated by the Governor in Council as the Minister for the purposes of this Act; (ministre)

prescribed

Version anglaise seulement

prescribed means prescribed by the regulations and, in relation to fees, includes determined in the manner prescribed by the regulations; (Version anglaise seulement)

set

ensemble

set means a number of articles of the same general character ordinarily on sale together or intended to be used together, to each of which the same design or variants thereof are applied; (ensemble)

useful article

objet utilitaire

useful article means an article that has a utilitarian function and includes a model of any such article; (objet utilitaire)

utilitarian function

fonction utilitaire

utilitarian function, in respect of an article, means a function other than merely serving as a substrate or carrier for artistic or literary matter; (fonction utilitaire)

variants

variantes

variants means designs applied to the same article or set and not differing substantially from one another. (variantes)

  • R.S., 1985, c. I-9, s. 2;
  • R.S., 1985, c. 10 (4th Supp.), s. 20;
  • 1993, c. 15, s. 12(E), c. 44, s. 161.

PART IIndustrial Designs

Registration

Marginal note:Register

 The Minister shall cause to be kept a register called the Register of Industrial Designs for the registration therein of industrial designs.

  • R.S., 1985, c. I-9, s. 3;
  • 1992, c. 1, s. 79.
Marginal note:Application to register design
  •  (1) The proprietor of a design, whether the first proprietor or a subsequent proprietor, may apply to register the design by paying the prescribed fees and filing an application with the Minister in the prescribed form including

    • (a) a drawing or photograph of the design and a description of the design;

    • (b) a declaration that the design was not, to the proprietor’s knowledge, in use by any person other than the first proprietor at the time the design was adopted by the first proprietor; and

    • (c) any prescribed information.

  • Marginal note:Substituted applicants

    (2) The application shall, subject to any prescribed terms and conditions, be considered to have been filed by a person other than the person who filed it if, before the design is registered, it is established to the satisfaction of the Minister that the other person was the proprietor when the application was filed.

  • R.S., 1985, c. I-9, s. 4;
  • 1992, c. 1, s. 79;
  • 1993, c. 15, s. 13.
Marginal note:Examination prior to registration
  •  (1) The Minister shall examine each application for the registration of a design to ascertain whether the design meets the requirements of this Act for registration.

  • Marginal note:Report of objections

    (2) Where the Minister finds that a design does not meet the requirements for registration, the Minister shall send the applicant a report setting out the objections to registration and specifying a period for reply.

  • Marginal note:Abandonment of application

    (3) If the applicant does not reply in good faith to the objections within the specified period, the application shall be considered abandoned.

  • Marginal note:Reinstatement of application

    (4) An application that is considered abandoned shall be reinstated if the applicant, within the prescribed period,

    • (a) makes a request for reinstatement;

    • (b) replies in good faith to the objections to registration; and

    • (c) pays the fees prescribed for reinstatement.

  • R.S., 1985, c. I-9, s. 5;
  • 1992, c. 1, s. 143(E);
  • 1993, c. 15, s. 13.
Marginal note:Restriction on protection

 No protection afforded by this Act shall extend to

  • (a) features applied to a useful article that are dictated solely by a utilitarian function of the article; or

  • (b) any method or principle of manufacture or construction.

  • R.S., 1985, c. 10 (4th Supp.), s. 21.
Marginal note:Registration of design
  •  (1) The Minister shall register the design if the Minister finds that it is not identical with or does not so closely resemble any other design already registered as to be confounded therewith, and shall return to the proprietor thereof the drawing or photograph and description with the certificate required by this Part.

  • Marginal note:Exception

    (2) The Minister may refuse, subject to appeal to the Governor in Council, to register such designs as do not appear to the Minister to be within the provisions of this Part or any design that is contrary to public morality or order.

  • Marginal note:Exception for late applications

    (3) The Minister shall refuse to register the design if the application for registration is filed in Canada

    • (a) more than one year after the publication of the design in Canada or elsewhere, in the case of an application filed in Canada on or after the day on which this subsection comes into force; or

    • (b) more than one year after the publication of the design in Canada, in the case of an application filed in Canada before the day on which this subsection comes into force.

  • Marginal note:Non-application of section 29

    (4) For the purposes of subsection (3), section 29 does not apply in determining when an application for registration is filed.

  • R.S., 1985, c. I-9, s. 6;
  • 1992, c. 1, s. 80;
  • 1993, c. 15, s. 14, c. 44, s. 162.
Marginal note:Certificate of registration
  •  (1) A certificate shall be signed by the Minister, the Commissioner of Patents or an officer, clerk or employee of the Commissioner’s office and shall state that the design has been registered in accordance with this Act.

  • Marginal note:Particulars thereof

    (2) The certificate referred to in subsection (1) shall show the date of registration, the name and address of the proprietor and the registration number.

  • Marginal note:Certificate to be evidence of contents

    (3) The certificate, in the absence of proof to the contrary, is sufficient evidence of the design, of the originality of the design, of the name of the proprietor, of the person named as proprietor being proprietor, of the commencement and term of registration, and of compliance with this Act.

  • Marginal note:No proof of signature required

    (4) A certificate appearing to be issued under this section is admissible in evidence in all courts without proof of the signature or official character of the person appearing to have signed it.

  • R.S., 1985, c. I-9, s. 7;
  • 1992, c. 1, ss. 81, 143(E);
  • 1993, c. 15, s. 15.

 [Repealed, 1993, c. 15, s. 16]

Exclusive Right

Marginal note:Exclusive right

 An exclusive right for an industrial design may be acquired by registration of the design under this Part.

  • R.S., c. I-8, s. 9.
Marginal note:Duration of right
  •  (1) Subject to subsection (3), the term limited for the duration of an exclusive right for an industrial design is ten years beginning on the date of registration of the design.

  • Marginal note:Maintenance fees

    (2) The proprietor of a design shall, to maintain the exclusive right accorded by the registration of the design, pay to the Commissioner of Patents such fees, in respect of such periods, as may be prescribed.

  • Marginal note:Expiration of term

    (3) Where the fees payable under subsection (2) are not paid within the time provided for by the regulations, the term limited for the duration of the exclusive right shall be deemed to have expired at the end of that time.

  • R.S., 1985, c. I-9, s. 10;
  • 1993, c. 15, s. 17, c. 44, s. 163.
Marginal note:Using design without licence
  •  (1) During the existence of an exclusive right, no person shall, without the licence of the proprietor of the design,

    • (a) make, import for the purpose of trade or business, or sell, rent, or offer or expose for sale or rent, any article in respect of which the design is registered and to which the design or a design not differing substantially therefrom has been applied; or

    • (b) do, in relation to a kit, anything specified in paragraph (a) that would constitute an infringement if done in relation to an article assembled from the kit.

  • Marginal note:Substantial differences

    (2) For the purposes of subsection (1), in considering whether differences are substantial, the extent to which the registered design differs from any previously published design may be taken into account.

  • R.S., 1985, c. I-9, s. 11;
  • 1993, c. 44, s. 164.

Proprietorship

Marginal note:First proprietor
  •  (1) The author of a design is the first proprietor of the design, unless the author has executed the design for another person for a good and valuable consideration, in which case the other person is the first proprietor.

  • Marginal note:Acquired right

    (2) The right of another person to the property shall only be co-extensive with the right that the other person has acquired.

  • R.S., 1985, c. I-9, s. 12;
  • 1993, c. 15, s. 18.

Assignments

Marginal note:Design to be assignable
  •  (1) Every design, whether registered or unregistered, is assignable in law, either as to the whole interest or any undivided part, by an instrument in writing, which shall be recorded in the office of the Commissioner of Patents on payment of the prescribed fees.

  • Marginal note:Right to use design

    (2) Every proprietor of a design may grant and convey an exclusive right to make, use and vend and to grant to others the right to make, use and vend the design, within and throughout Canada or any part thereof, for the unexpired term of its duration or any part thereof.

  • Marginal note:Licence

    (3) A grant and conveyance under subsection (2) shall be called a licence, and shall be recorded in like manner and time as assignments.

  • R.S., 1985, c. I-9, s. 13;
  • 1993, c. 15, s. 19.

 [Repealed, 1993, c. 15, s. 20]

Action for Infringement

Marginal note:Action by proprietor or licensee
  •  (1) An action for infringement of an exclusive right may be brought in any court of competent jurisdiction by the proprietor of the design or by an exclusive licensee of any right therein, subject to any agreement between the proprietor and the licensee.

  • Marginal note:Proprietor to be a party

    (2) The proprietor of the design shall be or be made a party to any action for infringement of the exclusive right.

  • R.S., 1985, c. I-9, s. 15;
  • 1993, c. 44, s. 166.
Marginal note:Power of court to grant relief

 In any proceedings under section 15, the court may make such orders as the circumstances require, including orders for relief by way of injunction and the recovery of damages or profits, for punitive damages, and for the disposal of any infringing article or kit.

  • 1993, c. 44, s. 166.
Marginal note:Concurrent jurisdiction

 The Federal Court has concurrent jurisdiction to hear and determine

  • (a) any action for the infringement of an exclusive right; and

  • (b) any question relating to the proprietorship of a design or any right in a design.

  • 1993, c. 44, s. 166.

 [Repealed, 1993, c. 44, s. 167]

Marginal note:Defence
  •  (1) In any proceedings under section 15, a court shall not award a remedy, other than an injunction, if the defendant establishes that, at the time of the act that is the subject of the proceedings, the defendant was not aware, and had no reasonable grounds to suspect, that the design was registered.

  • Marginal note:Exception

    (2) Subsection (1) does not apply if the plaintiff establishes that the capital letter "D" in a circle and the name, or the usual abbreviation of the name, of the proprietor of the design were marked on

    • (a) all, or substantially all, of the articles to which the registration pertains and that were distributed in Canada by or with the consent of the proprietor before the act complained of; or

    • (b) the labels or packaging associated with those articles.

  • Marginal note:Proprietor

    (3) For the purposes of subsection (2), the proprietor is the proprietor at the time the articles, labels or packaging were marked.

  • R.S., 1985, c. I-9, s. 17;
  • 1993, c. 15, s. 21, c. 44, s. 168.
Marginal note:Limitation

 No remedy may be awarded for an act of infringement committed more than three years before the commencement of the action for infringement.

  • R.S., 1985, c. I-9, s. 18;
  • 1993, c. 44, s. 169.

PART IIGeneral

 [Repealed, 2001, c. 34, s. 52]

Clerical Errors

Marginal note:Correction

 Clerical errors that occur in the drawing up or copying of any instrument under this Act respecting industrial designs shall not be construed as invalidating the instrument, but when discovered, may be corrected under the authority of the Minister.

  • R.S., c. I-8, s. 20.

Inspection

Marginal note:Inspection of registers
  •  (1) Any person may be allowed to inspect the Register of Industrial Designs.

  • Marginal note:Copies

    (2) Any person may obtain copies of registered industrial designs on payment of the prescribed fees.

  • R.S., 1985, c. I-9, s. 21;
  • 1993, c. 15, s. 22.

Procedure as to Rectification and Alteration

Marginal note:Federal Court may rectify entries
  •  (1) The Federal Court may, on the information of the Attorney General or at the suit of any person aggrieved by any omission without sufficient cause to make any entry in the Register of Industrial Designs, or by any entry made without sufficient cause in the Register, make such order for making, expunging or varying any entry in the Register as the Court thinks fit, or the Court may refuse the application.

  • Marginal note:Costs

    (2) In either case, the Federal Court may make such order with respect to the costs of the proceedings as the Court thinks fit.

  • Marginal note:Questions to be decided

    (3) The Federal Court may in any proceedings under this section decide any question that may be necessary or expedient to decide for the rectification of the Register.

  • Marginal note:Jurisdiction

    (4) The Federal Court has exclusive jurisdiction to hear and determine proceedings under this section.

  • R.S., c. I-8, s. 22;
  • R.S., c. 10(2nd Supp.), s. 64.
Marginal note:Application to alter design
  •  (1) The registered proprietor of any registered industrial design may apply to the Federal Court for leave to add to or alter any industrial design in any particular not being an essential particular, and the Court may refuse or grant leave on such terms as it may think fit.

  • Marginal note:Notice to Minister

    (2) Notice of any intended application to the Federal Court under this section for leave to add to or alter any industrial design shall be given to the Minister, and the Minister is entitled to be heard on the application.

  • R.S., c. I-8, s. 23;
  • R.S., c. 10(2nd Supp.), s. 64.
Marginal note:Consequent rectification of register

 A certified copy of any order of the Federal Court for the making, expunging or varying of any entry in the Register of Industrial Designs, or for adding to or altering any registered industrial design, shall be transmitted to the Minister by an officer of the Registry of the Court, and the Register shall thereupon be rectified or altered in conformity with the order, or the purport of the order otherwise duly entered therein, as the case may be.

  • R.S., c. I-8, s. 24;
  • R.S., c. 10(2nd Supp.), s. 65.

Regulations

Marginal note:Regulations

 The Governor in Council may make regulations

  • (a) governing titles of designs;

  • (b) respecting the form and contents of applications for registration of designs;

  • (c) prescribing fees, or the manner of determining fees, to be paid for anything required or authorized to be done in the administration of this Act;

  • (d) respecting the return of any fees paid under this Act;

  • (e) respecting the registration of sets and of variants of a design;

  • (f) respecting the making of requests for priority under section 29, including the information and documents that must be filed in support of a request and the period within which a request must be made and the information and documents must be filed;

  • (g) governing the determination of the priority of applications under section 29 and generally governing the application of that section; and

  • (h) prescribing anything else that is to be prescribed under this Act and generally for carrying out the purposes and provisions of this Act.

  • R.S., 1985, c. I-9, s. 25;
  • 1993, c. 15, s. 23, c. 44, s. 170.

 [Repealed, 1993, c. 15, s. 23]

Priority

Marginal note:Application filed in another country
  •  (1) Subject to the regulations, an application for the registration of an industrial design filed in Canada by any person who has, or whose predecessor in title has, previously regularly filed an application for the registration of the same industrial design in or for a foreign country has the same force and effect as the same application would have if filed in Canada on the date on which the application for the registration of the same industrial design was first filed in or for that foreign country, if

    • (a) the application in Canada is filed within six months from the earliest date on which the foreign application was filed; and

    • (b) the person requests priority in respect of the application filed in Canada in accordance with the regulations and complies with any other prescribed requirements.

  • Marginal note:Definitions

    (2) In this section,

    foreign country

    pays étranger

    foreign country

    • (a) means a country that by treaty, convention or law affords a privilege to citizens of Canada that is similar to the privilege afforded by subsection (1) with respect to the effective date of an application for the registration of an industrial design, and

    • (b) includes a WTO Member; (pays étranger)

    WTO Agreement

    Accord sur l’OMC

    WTO Agreement has the meaning given to the word "Agreement" by subsection 2(1) of the World Trade Organization Agreement Implementation Act; (Accord sur l’OMC)

    WTO Member

    membre de l’OMC

    WTO Member means a Member of the World Trade Organization established by Article I of the WTO Agreement. (membre de l’OMC)

  • R.S., 1985, c. I-9, s. 29;
  • 1993, c. 44, s. 171;
  • 1994, c. 47, s. 118.

Transitional Provisions

Marginal note:Renewal of rights
  •  (1) Section 10, as it read immediately before the day on which this section came into force, applies in respect of an exclusive right acquired before that day.

  • Marginal note:Non-application of defence provision

    (2) Subsection 17(1) does not apply in respect of a design registered on the basis of an application filed before this section comes into force if, after the registration, the name of the proprietor of the design appears on the article to which the design applies by being marked, if the manufacture is a woven fabric, on one end of it, together with the letters "Rd." or "Enr." or both "Rd." and "Enr.", and, if the manufacture is of any other substance, with the letters "Rd." or "Enr." or both "Rd." and "Enr." and the year of registration at the edge of it or on any other convenient part.

  • Marginal note:Method of marking

    (3) For the purposes of subsection (2), the mark may be put on the manufacture by marking it on the material itself or by attaching to it a label with the proper marks on it.

  • 1993, c. 44, s. 172.

Transitional Provisions

Marginal note:Prior applications
  •  (1) Subject to subsection (3), an application for the registration of a design filed before this section came into force shall be dealt with and disposed of in accordance with the provisions of this Act as it read immediately after this section came into force.

  • Marginal note:Registrations

    (2) Subject to subsections (3) to (6), any matter arising after this section came into force in respect of a design registered on the basis of an application filed before it came into force shall be dealt with and disposed of in accordance with the provisions of this Act as it reads when the matter arises.

  • Marginal note:Application requirements

    (3) An application for the registration of a design shall be considered to have been made in accordance with section 4 as it read immediately after this section came into force if the application was made before this section came into force

    • (a) by the proprietor of the design, whether the first proprietor or a subsequent proprietor; and

    • (b) in accordance with section 4 as it read at the time the application was made.

  • Marginal note:Renewal of rights

    (4) Subsection 10(2), as it read immediately before this section came into force, applies in respect of an exclusive right for which the term expires more than three months before this section came into force.

  • Marginal note:Non-application of defence provision

    (5) Subsection 17(1) does not apply in respect of a design registered on the basis of an application filed before this section came into force if, after the registration, the name of the proprietor of the design appears on the article to which the design applies by being marked, if the manufacture is a woven fabric, on one end of it, together with the letters "Rd.", "Enr." or both "Rd." and "Enr.", and, if the manufacture is of any other substance, with the letters "Rd.", "Enr." or both "Rd." and "Enr." and the year of registration at the edge of it or on any other convenient part.

  • Marginal note:Method of marking

    (6) For the purposes of subsection (5), the mark may be put on the manufacture by making it on the material itself or by attaching to it a label with the proper marks on it.

  • 1993, c. 15, s. 24.

AMENDMENTS NOT IN FORCE

  • — 2014, c. 39, s. 102

    • 102 Section 2 of the Industrial Design Act is amended by adding the following in alphabetical order:

      Convention

      Convention means the Convention of the Union of Paris made on March 20, 1883, including any amendments and revisions made from time to time to which Canada is a party; (Convention)

      country of the Union

      country of the Union means

      • (a) a country that is a member of the Union for the Protection of Industrial Property constituted under the Convention, or

      • (b) a member of the World Trade Organization as defined in subsection 2(1) of the World Trade Organization Agreement Implementation Act; (pays de l’Union)

  • — 2014, c. 39, s. 103

    • 1992, c. 1, s. 79

      103 Section 3 of the Act is replaced by the following:

      • Register
        • 3 (1) The Minister shall cause to be kept a register called the Register of Industrial Designs, which shall contain the prescribed information and statements in respect of designs that are registered under this Act.

        • Evidence

          (2) The Register of Industrial Designs is evidence of its contents, and a copy of an entry in the Register is evidence of the particulars of the entry if the copy is certified as a true copy by the Minister, by the Commissioner of Patents or by an officer, clerk or employee of the Commissioner’s office.

        • Admissibility

          (3) A copy appearing to have been certified under subsection (2) is admissible in evidence in any court.

  • — 2014, c. 39, s. 104

    • 1993, c. 15, s. 13
      • 104 (1) Subsection 4(1) of the Act is replaced by the following:

        • Application to register design
          • 4 (1) The proprietor of a design, whether the first proprietor or a subsequent proprietor, may apply to register the design by paying the prescribed fees and filing with the Minister an application that contains

            • (a) the name of the finished article in respect of which the design is to be registered;

            • (b) a representation of the design that complies with any prescribed requirements; and

            • (c) any prescribed information or statement.

      • (2) Section 4 of the Act is amended by adding the following after subsection (2):

        • Filing date

          (3) The filing date of an application in Canada is the date on which the Minister receives the prescribed documents, information and statements or, if they are received on different dates, the latest of those dates.

  • — 2014, c. 39, s. 105

    • R.S., c. 10 (4th Supp.), s. 21; 1992, c. 1, s. 81 and s. 143(1) (Sch. VI, item 16(E)); 1993, c. 15, ss. 13, 15 and 16; 1993, c. 44, s. 162

      105 Sections 5 to 9 of the Act are replaced by the following:

      • Examination of application for registration

        5 The Minister shall examine, in accordance with the regulations, each application for the registration of a design.

      • Refusal of application
        • 6 (1) The Minister shall refuse an application for the registration of a design and notify the applicant of the refusal if the Minister is satisfied that the design is not registrable.

        • Registration of design

          (2) If the Minister is not so satisfied, the Minister shall register the design and notify the applicant of the registration.

      • Registrable design

        7 A design is registrable if

        • (a) the application is filed in accordance with this Act;

        • (b) the design is novel, within the meaning of section 8.2;

        • (c) the design was created by the applicant or the applicant’s predecessor in title;

        • (d) the design does not consist only of features that are dictated solely by a utilitarian function of the finished article; and

        • (e) the design is not contrary to public morality or order.

      • Priority date
        • 8 (1) The priority date of a design in an application for the registration of a design (in this section and section 8.1 referred to as the “pending application”) is the filing date of the application, unless

          • (a) the pending application is filed by a person

            • (i) who, on the filing date of the pending application, is a citizen or national of, or is domiciled in, a country of the Union or has a real and effective industrial or commercial establishment in a country of the Union, and

            • (ii) who has, or whose predecessor in title has, previously regularly filed an application for the registration of a design disclosing the same design in or for a country of the Union;

          • (b) the filing date of the pending application is within six months after the filing date of the previously regularly filed application; and

          • (c) the applicant has made a request for priority in respect of the pending application on the basis of the previously regularly filed application.

        • Filing date of previously regularly filed application

          (2) In the circumstances set out in paragraphs (1)(a) to (c), the priority date of the design is the filing date of the previously regularly filed application.

      • Request for priority
        • 8.1 (1) For the purposes of section 8, an applicant for the registration of a design may submit to the Minister a request for priority in respect of the pending application on the basis of one or more previously regularly filed applications.

        • Requirements

          (2) The request for priority shall be made in accordance with the regulations, and the applicant shall submit to the Minister the filing date, the name of the country or office of filing and the number of each previously regularly filed application on which that request is based.

        • Request deemed never filed

          (3) A request for priority is deemed never to have been filed if the request is not made in accordance with the regulations or if the applicant does not submit the information, other than the number of each previously regularly filed application, that is required under subsection (2).

        • Withdrawal of request

          (4) An applicant may, in accordance with the regulations, withdraw a request for priority, either entirely or with respect to one or more previously regularly filed applications.

        • Multiple previously regularly filed applications

          (5) If more than one application has been previously regularly filed either in or for the same country or in or for different countries,

          • (a) paragraph 8(1)(b) shall be applied using the earliest filing date of the previously regularly filed applications; and

          • (b) subsection 8(2) shall be applied using the earliest filing date of the previously regularly filed applications on which the request for priority is based.

        • Previously regularly filed application deemed never filed

          (6) For the purposes of section 8, a previously regularly filed application shall be deemed never to have been filed if

          • (a) on the filing date of the pending application, more than six months have elapsed since the filing date of the previously regularly filed application;

          • (b) before the filing date of the pending application, another application for the registration of a design, disclosing the design in the pending application applied to the same finished article,

            • (i) is filed by the person who filed the previously regularly filed application or by that person’s successor in title or predecessor in title, and

            • (ii) is filed in or for the country where the previously regularly filed application was filed; and

          • (c) on the filing date of the other application referred to in paragraph (b) or, if there is more than one such other application, on the earliest of their filing dates, the previously regularly filed application

            • (i) has been withdrawn, abandoned or refused without having been made available to the public and without leaving any rights outstanding, and

            • (ii) has not served as a basis for a request for priority in any country, including Canada.

      • Novel design
        • 8.2 (1) A design in an application for the registration of a design is novel if the same design, or a design not differing substantially from it, applied to a finished article that is the same as or analogous to the finished article in respect of which the design is to be registered,

          • (a) has not been disclosed, more than 12 months before the priority date of the design in the application, in such a manner that it became available to the public in Canada or elsewhere, by

            • (i) the person who filed the application,

            • (ii) that person’s predecessor in title, or

            • (iii) a person who obtained knowledge of the design in the application, directly or indirectly, from the person who filed the application or their predecessor in title;

          • (b) has not been disclosed by any other person, before the priority date referred to in paragraph (a), in such a manner that it became available to the public in Canada or elsewhere; and

          • (c) subject to the regulations, has not been disclosed in an application filed in Canada for the registration of a design whose priority date is before the priority date referred to in paragraph (a).

        • Application deemed never filed

          (2) For the purposes of paragraph (1)(c), an application referred to in that paragraph is deemed never to have been filed if it is withdrawn before the earlier of the date on which it is made available to the public under section 8.3 and the date on which a design in it is registered.

      • Application and documents made available to public
        • 8.3 (1) The Minister shall make available to the public, on the prescribed date, an application for the registration of a design and all documents in the Minister’s possession relating to the application and to the design’s registration.

        • Non-disclosure

          (2) Except with the approval of the applicant or the registered proprietor, the Minister shall, before the prescribed date referred to in subsection (1), refuse to disclose the application for the registration of the design and any information or document relating to the application or to the design’s registration.

        • Limitation

          (3) The prescribed date referred to in subsection (1) may not be later than the later of the date of registration of the design and 30 months after the filing date of the application for registration or, if a request for priority is made in respect of the application, than the earliest filing date of a previously regularly filed application on which the request for priority is based.

        • Withdrawal of request

          (4) If a request for priority is withdrawn on or before the prescribed date, it shall, for the purposes of subsection (3) and to the extent that it is withdrawn, be deemed never to have been made.

        • Withdrawn applications

          (5) If an application for the registration of a design is withdrawn in accordance with the regulations on or before the prescribed date, the Minister shall not make the application and documents referred to in subsection (1) available to the public and shall refuse to disclose the application and documents, as well as any information relating to them.

        • Prescribed date

          (6) A prescribed date referred to in subsection (4) or (5) is to be no later than the prescribed date referred to in subsection (1).

      Exclusive Right

      • Exclusive right

        9 The registration of a design, unless shown to be invalid, gives to the proprietor an exclusive right in relation to the design.

  • — 2014, c. 39, s. 106

    • 1993, c. 44, s. 163

      106 Subsection 10(1) of the Act is replaced by the following:

      • Duration of exclusive right
        • 10 (1) Subject to subsection (3), the term limited for the duration of an exclusive right

          • (a) begins on the later of the date of registration of the design and the prescribed date, referred to in subsection 8.3(1), on which the application for the registration of the design is made available to the public; and

          • (b) ends on the later of the end of 10 years after the date of registration of the design and the end of 15 years after the filing date of the application.

  • — 2014, c. 39, s. 107

    • 107 The Act is amended by adding the following after section 11:

      • Restriction on protection

        11.1 No protection afforded by this Act shall extend to features applied to a useful article that are dictated solely by a utilitarian function of the article or to any method or principle of manufacture or construction.

  • — 2014, c. 39, s. 108

    • 1993, c. 15, s. 19

      108 Section 13 of the Act and the heading before it are replaced by the following:

      Transfers

      • Design transferable
        • 13 (1) Every design, whether registered or unregistered, is transferable in whole or in part.

        • Recording of transfer of application

          (2) The Minister shall, subject to the regulations, record the transfer of an application for the registration of a design on the request of the applicant or, on receipt of evidence satisfactory to the Minister of the transfer, on the request of a transferee of the application.

        • Registration of transfer of design

          (3) The Minister shall, subject to the regulations, register the transfer of any registered design on the request of the registered proprietor or, on receipt of evidence satisfactory to the Minister of the transfer, on the request of a transferee of the design.

        • Transfer void

          (4) A transfer of a registered design that has not been registered is void against a subsequent transferee if the transfer to the subsequent transferee has been registered.

        • Removal of recording or registration

          (5) The Minister shall remove the recording or registration of the transfer of an application for the registration of a design or the transfer of a registered design on receipt of evidence satisfactory to the Minister that the transfer should not have been recorded or registered.

        • Limitation

          (6) The Minister is not authorized to remove the registration of a transfer of a registered design for the reason only that the transferor had previously transferred the registered design to another person.

  • — 2014, c. 39, s. 109

    • 1993, c. 15, s. 22

      109 Section 21 of the Act and the heading before it are replaced by the following:

      Extension of Time

      • Time limit deemed extended

        21 If a time limit specified under this Act ends on a day on which the Commissioner of Patent’s office is closed for business, that time limit shall be deemed to be extended to the next day on which the office is open for business.

  • — 2014, c. 39, s. 110

    • 110 The Act is amended by adding the following after section 24:

      Electronic Form and Means

      • Electronic form and means
        • 24.1 (1) Subject to the regulations, any document, information or fee that is submitted to the Minister or the Commissioner of Patents under this Act may be submitted in any electronic form, and by any electronic means, that is specified by the Minister or the Commissioner of Patents.

        • Collection, storage, etc.

          (2) Subject to the regulations, the Minister and the Commissioner of Patents may use electronic means to create, collect, receive, store, transfer, distribute, publish, certify or otherwise deal with documents or information.

        • Definition of electronic

          (3) In this section, electronic, in reference to a form or means, includes optical, magnetic and other similar forms or means.

  • — 2014, c. 39, s. 111

    • 1993, c. 44, s. 170
      • 111 (1) Paragraphs 25(b) and (c) of the Act are replaced by the following:

        • (b) respecting the form and contents of applications for the registration of designs, including

          • (i) the manner of naming finished articles,

          • (ii) the manner of identifying features of shape, configuration, pattern or ornament of all or part of a finished article, and

          • (iii) the manner of identifying that an application relates to only some of the features of shape, configuration, pattern or ornament that, in a finished article, appeal to and are judged solely by the eye, or to only some or all of those features of a part of a finished article;

        • (b.1) respecting the processing and examination of applications for the registration of designs, including the circumstances in which applications shall be deemed to be abandoned and the circumstances in which they shall be reinstated;

        • (b.2) respecting the circumstances in which paragraph 8.2(1)(c) does not apply in respect of a design that has been disclosed in an application for the registration of a design that was filed in Canada by a person referred to in subparagraph 8.2(1)(a)(i) or (ii);

        • (b.3) respecting the withdrawal of an application for the registration of a design and, for the purposes of subsections 8.3(4) and (5), prescribing the date, or the manner of determining the date, on or before which a request for priority or an application for the registration of a design shall be withdrawn;

        • (c) respecting the payment of fees and the amount of those fees;

      • 1993, c. 44, s. 170

        (2) Paragraph 25(d) of the French version of the Act is replaced by the following:

        • d) régir le remboursement des droits acquittés sous le régime de la présente loi;

      • 1993, c. 44, s. 170

        (3) Paragraphs 25(f) and (g) of the Act are replaced by the following:

        • (f) respecting requests for priority, including

          • (i) the period within which priority shall be requested,

          • (ii) the information and documentation that shall be submitted in support of requests for priority,

          • (iii) the period within which that information and documentation shall be submitted,

          • (iv) the withdrawal of requests for priority, and

          • (v) the correction of requests for priority or of information or documentation submitted in support of them and the effect of corrections on the application of section 8.3;

        • (g) respecting certificates of registration;

        • (g.1) respecting the recording of documents relating to a design;

        • (g.2) respecting the recording or registration of transfers of applications for the registration of a design or transfers of registered designs;

        • (g.3) respecting the provision, including in electronic form and by electronic means, of documents and information to the Minister or the Commissioner of Patents, including the time at which they are deemed to be received by the Minister or the Commissioner of Patents;

        • (g.4) respecting the use of electronic means for the purposes of subsection 24.1(2);

        • (g.5) respecting communications between the Minister or the Commissioner of Patents and any other person;

        • (g.6) for carrying into effect, despite anything in this Act, the Geneva (1999) Act of the Hague Agreement Concerning the International Registration of Industrial Designs, adopted at Geneva on July 2, 1999, including any amendments and revisions made from time to time to which Canada is a party; and

  • — 2014, c. 39, s. 112

    • 1993, c. 15, s. 24; 1993, c. 44, ss. 171 and 172; 1994, c. 47, s. 118

      112 The heading before section 29 and sections 29 to 30 of the Act are replaced by the following:

      Transitional Provisions

      • Definition of coming-into-force date

        29 In sections 30 to 32, coming-into-force date means the day on which subsection 104(2) of the Economic Action Plan 2014 Act, No. 2 comes into force.

      • Prior applications — filing date

        30 An application for the registration of a design whose filing date, determined under this Act as it read immediately before the coming-into-force date, is before the coming-into-force date, shall be dealt with and disposed of in accordance with

        • (a) the provisions of this Act, as they read immediately before the coming-into-force date, other than sections 5 and 13; and

        • (b) sections 5, 13, 21 and 24.1.

      • Prior application — no filing date

        31 An application for the registration of a design that is filed before the coming-into-force date and that does not, on that date, have a filing date, determined under this Act as it read immediately before the coming-into-force date, shall be deemed never to have been filed.

      • Registered designs

        32 Any matter arising on or after the coming-into-force date, in respect of a design registered before that date or a design registered on or after that date on the basis of an application whose filing date, determined under this Act as it read immediately before the coming-into-force date, is before the coming-into-force date, shall be dealt with and disposed of in accordance with

        • (a) the provisions of this Act, as they read immediately before the coming-into-force date, other than sections 3 and 13; and

        • (b) sections 3, 13, 21 and 24.1.

      • Regulations

        33 For greater certainty, a regulation made under section 25 applies to an application referred to in section 30 and to a design referred to in section 32, unless the regulation provides otherwise.

  • — 2015, c. 36, s. 44

    • 44 The Industrial Design Act is amended by adding the following after section 3:

      • Obvious error

        3.1 The Minister may, within six months after an entry is made in the Register of Industrial Designs, correct any error in the entry that is obvious from the documents relating to the registered design in question that are, at the time that the entry is made, in the Minister’s possession.

  • — 2015, c. 36, s. 45

    • 45 Section 20 of the Act and the heading before it are repealed.

  • — 2015, c. 36, s. 46

    • 46 Section 21 of the Act and the heading before it are replaced by the following:

      Extension of Time

      • Time period extended
        • 21 (1) If a time period fixed under this Act for doing anything ends on a prescribed day or a day that is designated by the Minister, that time period is extended to the next day that is not a prescribed day or a designated day.

        • Power to designate day

          (2) The Minister may, on account of unforeseen circumstances and if the Minister is satisfied that it is in the public interest to do so, designate any day for the purposes of subsection (1). If a day is designated, the Minister shall inform the public of that fact on the website of the Canadian Intellectual Property Office.

  • — 2015, c. 36, s. 47

      • 47 (1) Section 25 of the Act is amended by adding the following after paragraph (d):

        • (d.1) authorizing the Minister to waive, subject to any prescribed terms and conditions, the payment of a fee if the Minister is satisfied that the circumstances justify it;

      • (2) Section 25 of the Act is amended by adding the following after paragraph (e):

        • (e.1) respecting the correction of obvious errors in documents submitted to the Minister or the Commissioner of Patents, including

          • (i) the determination of what constitutes an obvious error, and

          • (ii) the effect of the correction;

  • — 2015, c. 36, s. 48

    • 48 Paragraph 30(a) of the Act is replaced by the following:

      • (a) the provisions of this Act, as they read immediately before the coming-into-force date, other than sections 5, 13 and 20; and

  • — 2015, c. 36, s. 49

    • 49 Paragraphs 32(a) and (b) of the Act are replaced by the following:

      • (a) the provisions of this Act, as they read immediately before the coming-into-force date, other than sections 3, 13 and 20; and

      • (b) sections 3, 3.1, 13, 21 and 24.1.

  • — 2015, c. 36, ss. 71(1) to (5)

    • 2014, c. 39
      • 71 (1) In this section, other Act means the Economic Action Plan 2014 Act, No. 2.

      • (2) If section 46 of this Act comes into force before section 109 of the other Act, then that section 109 is repealed.

      • (3) If section 109 of the other Act comes into force before section 46 of this Act, then that section 46 is replaced by the following:

        • 46 Section 21 of the Act is replaced by the following:

          • Time period extended
            • 21 (1) If a time period fixed under this Act for doing anything ends on a prescribed day or a day that is designated by the Minister, that time period is extended to the next day that is not a prescribed day or a designated day.

            • Power to designate day

              (2) The Minister may, on account of unforeseen circumstances and if the Minister is satisfied that it is in the public interest to do so, designate any day for the purposes of subsection (1). If a day is designated, the Minister shall inform the public of that fact on the website of the Canadian Intellectual Property Office.

      • (4) If section 46 of this Act comes into force on the same day as section 109 of the other Act, then that section 109 is deemed never to have come into force and is repealed.

      • (5) If sections 48 and 49 of this Act come into force on the same day as section 112 of the other Act, then that section 112 is deemed to have come into force before those sections 48 and 49.

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