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

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Act current to 2019-06-20 and last amended on 2018-11-05. Previous Versions

PART IIndustrial Designs (continued)

Registration (continued)

Marginal note:Request for priority

  •  (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.

  • 2014, c. 39, s. 105

Marginal note:Novel design

  •  (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).

  • Marginal note: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.

  • 2014, c. 39, s. 105

Marginal note:Application and documents made available to public

  •  (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.

  • Marginal note: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.

  • Marginal note: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, the earliest filing date of a previously regularly filed application on which the request for priority is based.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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).

  • 2014, c. 39, s. 105
  • 2017, c. 26, s. 60(E)

Exclusive Right

Marginal note:Exclusive right

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

  • R.S., 1985, c. I-9, s. 9
  • 2014, c. 39, s. 105

Marginal note:Duration of exclusive right

  •  (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.

  • 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
  • 2014, c. 39, s. 106

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
 
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