Industrial Design Regulations (SOR/2018-120)

Marginal note:Features of shape, configuration, pattern and ornament

• 17 (1) Subject to subsections (2) to (4), an application is deemed to relate to all of the features of shape, configuration, pattern and ornament shown in the representation of the design that, in the finished article, appeal to and are judged solely by the eye.

• Marginal note:Exception — statement of limitation

  (2) If the application contains a statement clearly indicating that it relates only to some of the features of shape, configuration, pattern or ornament that, in the finished article, appeal to and are judged solely by the eye, or only to some or all of those features of a part of the finished article, then the application relates only to those features.

• Marginal note:Exception — features in dotted or broken lines

  (3) An application is deemed not to relate to a feature that is shown in the representation of the design in dotted or broken lines, unless the application contains a statement to the contrary.

• Marginal note:Exception — blurring or colouring

  (4) An application is deemed not to relate to a feature that is shown in the representation of the design by means of blurring or colouring if it is evident that the purpose of the blurring or colouring is to indicate that the application does not relate to that feature.

Marginal note:Optional description

18 An application may contain a brief statement describing the representation or the features of the design, but the statement must not describe a utilitarian function or a method or principle of manufacture or construction.

Marginal note:Hague applications

19 The contents of a Hague application on its filing date are deemed to comply with paragraphs 14(b) to (d) and sections 15, 16 and 18.

Marginal note:One design per application

• 20 (1) An application must be limited to one design applied to a single finished article or set or variants applied to a single finished article or set.

• Marginal note:Divisional applications

  (2) The applicant, in the case of a pending application (the “original application”), may file with the Minister a divisional application for the registration of a design applied to a finished article if that design applied to that finished article

  • (a) in respect of an original application that is not a divisional application, was disclosed in the original application on its filing date; and

  • (b) in respect of an original application that is a divisional application,

    • (i) was disclosed in the original application on the day on which the Minister received the original application, and

    • (ii) was disclosed, in the earliest original application in the series of applications from which the divisional application results, on the filing date of the earliest original application.

• Marginal note:Required statement

  (3) An application is a divisional application only if a statement to that effect that identifies the corresponding original application is contained in the application or in a separate document that is submitted to the Minister no later than three months after the day on which the Minister received the application.

• Marginal note:Separate application

  (4) A divisional application is a separate application, including with respect to the payment of any fees.

• Marginal note:Time period

  (5) A divisional application must not be filed later than two years after the filing date of the original application or, if the original application is itself a divisional application, two years after the filing date of the earliest original application in the series of applications from which the divisional application results.

• Marginal note:Exception

  (6) Subsection (5) does not apply to a divisional application for the registration of a design applied to a finished article if

  • (a) the Minister sends to the applicant, in the case of an original application, a report under subsection 22(2) setting out an objection to registration on the basis that the original application does not comply with subsection (1);

  • (b) on or after the date of the report under subsection 22(2), the applicant amends the original application so that it is no longer for the registration of that design applied to that finished article; and

  • (c) the divisional application is filed no later than six months after the day of the amendment.

Filing Date

Marginal note:Non-application to Hague application

• 21 (1) This section does not apply to a Hague application or to a divisional application resulting from a Hague application.

• Marginal note:Required documents, information and statements

  (2) The documents, information and statements prescribed for the purpose of subsection 4(3) of the Act are

  • (a) in respect of an application other than a divisional application,

    • (i) an explicit or implicit indication that the registration of a design is sought,

    • (ii) information allowing the identity of the applicant to be established,

    • (iii) information allowing the Minister to contact the applicant, and

    • (iv) a representation of the design; and

  • (b) in respect of a divisional application, those documents, information and statements received by the Minister under paragraph (a) in respect of the earliest original application in the series of applications from which the divisional application results.

• Marginal note:Notice

  (3) In respect of an application other than a divisional application, the Minister must by notice inform an applicant whose application does not contain all the documents, information and statements referred to in paragraph (2)(a) of which documents, information and statements are outstanding and require that the applicant submit them no later than two months after the date of the notice.

• Marginal note:Application deemed never filed

  (4) If the Minister does not receive those documents, information and statements before the end of that period, the application is deemed never to have been filed. However, the applicant is not entitled to a refund of any fees paid in respect of the application.

Examination

Marginal note:Registrability

• 22 (1) The Minister must examine an application to determine if the design is registrable under section 7 of the Act.

• Marginal note:Objections

  (2) Subject to subsection (3), if the Minister has reasonable grounds to believe that the design is not registrable, the Minister must send to the applicant a report setting out the objections to registration and inviting the applicant to reply to the objections no later than three months after the date of the report.

• Marginal note:Objections to Hague application

  (3) In respect of a Hague application, the first report under subsection (2) must be sent by the Minister to the International Bureau in the form of a notification of refusal referred to in Article 12(2) of the Hague Agreement and the Minister is not required to send a copy of the report directly to the applicant.

• Marginal note:Extension of time period

  (4) The time period to reply referred to in subsection (2) is extended by six months if, before it ends, the applicant submits a request to the Minister.

• Marginal note:Limitation on extensions

  (5) Only one request under subsection (4) may be submitted in respect of a particular report.

• Marginal note:Deemed abandonment

  (6) If the applicant does not reply in good faith to a report within the time period set out in subsection (2), or within the time period that has been extended under subsection (4), the application is deemed to be abandoned.

• Marginal note:Reinstatement

  (7) An application that is deemed to be abandoned is reinstated if the applicant, within six months after the day on which the application is deemed to be abandoned,

  • (a) submits a request for reinstatement to the Minister;

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

  • (c) pays the fee set out in item 9 of the schedule.

Marginal note:Advanced examination

23 The Minister must advance the examination of an application out of its routine order on the request of the applicant and on payment of the fee set out in item 10 of the schedule.

Marginal note:Delayed registration

24 In respect of an application other than a Hague application, on the request of the applicant and on payment of the fee set out in item 11 of the schedule, the Minister, if it is technically feasible, must not register a design until the day that is 30 months after the filing date of the application or, if a request for priority is made in respect of the application, after the earliest filing date of a previously regularly filed application on which the request for priority is based.

Amendments

Marginal note:Time limit to amend application

• 25 (1) Subject to subsections (2) and (3), an application may be amended before the design is registered.

• Marginal note:Limitations on amendment

  (2) An application must not be amended

  • (a) to change the identity of the applicant, except, in respect of an application other than a Hague application, to record a transfer of the application under section 13 of the Act or to substitute an applicant under subsection 4(2) of the Act;

  • (b) to add a representation of a design;

  • (c) to change a representation of a design if the amendment would result in the application being for a design that differs substantially from the design that was the subject of the application on its filing date or, in the case of a divisional application, on the day on which the Minister received the divisional application;

  • (d) to add or amend a statement under section 17 or 18 if the addition or amendment would result in the application being for a design that differs substantially from the design that was the subject of the application on its filing date or, in the case of a divisional application, on the day on which the Minister received the divisional application; or

  • (e) to add an indication that it is a divisional application, if more than three months have passed since the day on which the Minister received the application.

• Marginal note:Limitation — application made available to public

  (3) If the application contains the name of a finished article in respect of which the design is to be registered, that application must not be amended, on or after the date prescribed under subsection 8.3(1) of the Act for making an application available to the public, to change that name to the name of a substantially different finished article.

Priority

Marginal note:Non-application to Hague application

• 26 (1) This section does not apply to a Hague application or to a divisional application resulting from a Hague application.

• Marginal note:Requirements

  (2) For the purpose of subsection 8.1(2) of the Act, a request for priority must

  • (a) be made in the application or in a separate document;

  • (b) indicate the filing date and the name of the country or office of filing of each previously regularly filed application on which that request is based; and

  • (c) be made no later than the earlier of the day that is six months after the earliest filing date of those previously regularly filed applications and the date of registration of the design that is the subject of the pending application.

• Marginal note:Corrections

  (3) Subject to subsections (4) and (5), an error in the filing date, the name of the country or office of filing or the number of a previously regularly filed application submitted under subsection 8.1(2) of the Act may be corrected by the applicant before the design is registered.

• Marginal note:Exception

  (4) After the date prescribed under subsection 8.3(1) of the Act for making the pending application available to the public, an error in the name of the country or office of filing submitted under subsection 8.1(2) of the Act may be corrected only if, on the day the application is made available to the public, it would have been obvious from the documents in the Minister’s possession relating to the application that the name of another particular country or office of filing was intended by the applicant.

• Marginal note:Exception

  (5) An error in the filing date submitted under subsection 8.1(2) of the Act must not be corrected if more than six months have passed since the filing date of the pending application.

Marginal note:Copy of previously filed application

• 27 (1) If an applicant requests priority in respect of a pending application on the basis of one or more previously regularly filed applications — other than an application previously regularly filed in or for Canada — the Minister may by notice request that the applicant of the pending application, no later than three months after the date of the notice,

  • (a) at the option of the applicant, either

    • (i) submit to the Minister a copy of the previously regularly filed application certified as correct by the office in which it was filed and a certificate from that office showing its filing date, or

    • (ii) make a copy of the previously regularly filed application available to the Minister from a digital library that is specified by the Minister or Commissioner as being accepted for that purpose and inform the Minister that it is so available; and

  • (b) if the previously regularly filed application is in a language other than English or French, submit to the Minister an English or French translation of the whole or a specified part of the previously regularly filed application.

• Marginal note:Translation not accurate

  (2) If the Minister has reasonable grounds to believe that a translation submitted under subsection (1) is not accurate, the Minister may by notice request that the applicant, in the case of the pending application, submit to the Minister, no later than three months after the date of the notice,

  • (a) a statement by the translator to the effect that, to the best of their knowledge, the translation is accurate; or

  • (b) a new translation together with a statement by its translator to the effect that, to the best of their knowledge, the new translation is accurate.

• Marginal note:Notice included in report

  (3) If the Minister issues a report under subsection 22(2), a notice under subsection (1) or (2) may be given by including the request in that report.

• Marginal note:Extension

  (4) The time period for complying with a request under subsection (1) or (2) is extended by six months if, within that time period, the applicant submits to the Minister a request for an extension.

• Marginal note:Limitation on extensions

  (5) Only one request under subsection (4) may be submitted in respect of a particular request under subsection (1) or (2).

• Marginal note:Non-compliance with request

  (6) If the applicant of a pending application does not comply with a request under subsection (1) or (2) in respect of a particular previously regularly filed application before the end of the time period set out in those subsections or of the time period that has been extended under subsection (4), the request for priority is deemed to have been withdrawn with respect to that previously regularly filed application at the end of that time period.