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

Act current to 2016-05-12

 [Repealed, 1993, c. 15, s. 16]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.
 
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