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

Short Title

Marginal note:Short title

1 This Act may be cited as the Industrial Design Act.

Interpretation

Marginal note:Definitions

2 In this Act,

article

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

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)

design

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

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

Minister

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

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

set

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

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

utilitarian function

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

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

PART IIndustrial Designs

Registration

Marginal note: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.

• Marginal note: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.

• Marginal note:Admissibility

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

Marginal note: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.

Marginal note: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.

• 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.

• Marginal note: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.

Marginal note:Examination of application for registration

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

5.1 [Repealed, 2014, c. 39, s. 105]

Marginal note: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.

• Marginal note:Registration of design

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

Marginal note: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.

Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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).

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.