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

Act current to 2017-09-27

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
        • (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
          • (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
        • (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
        • (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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