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Industrial designs – Learn the basics
It’s all in the look. Learn why industrial designs matter.

From: Canadian Intellectual Property Office

Welcome to the Industrial designs – Learn the basics online module

Your products have value not only because of what they do, but also because of how they look.

An eye-catching look is a good start, but design is about more than decoration.

Effective designs appeal to consumers and create an emotional connection between the consumer, the product and the brand. Designs can influence consumer behaviour and support the marketing and sales of the product.

Find out what industrial designs are and how they can be an important part of your business.

This module is aimed at those who would like to learn about intellectual property (IP), specifically industrial designs, such as:

In this module, you will learn:

  1. what an industrial design is
  2. what you can and cannot register as an industrial design
  3. how industrial designs can be a valuable business asset
  4. the steps involved in filing an industrial design application
  5. best practices on managing your industrial design portfolio

IP refers to creations of the mind, such as inventions, literary and artistic works, symbols, names and images used in commerce, as well as designs.

Think of a store shelf or an e-commerce platform with a variety of products. Consumers often rely on brands they trust to select a particular product, but something else can influence them: the design!

A product design is meant to appeal to the eye in order to get consumers' attention.

Much like a reputable brand, a carefully created product design can also set your business apart from the competition and generate consumer loyalty.

Consider protecting your product's novel look and distinctive visual feature(s) through an industrial design.

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Understanding industrial designs

What is an industrial design?

Simply put, it is about how a product looks.

It consists of the visual features of shape, configuration, pattern, ornament or any combination of these features.

The design must be novel and appeal to the eye.

It must be applied to a finished article and the features can be 2- or 3-dimensional.

Industrial designs illustrated

Features of shape and configuration refer to a finished article's 3-dimensional structure.

Shape

The external form or outline of the article

Configuration

The arrangement of the parts that make up the finished article

Features of pattern and ornament are defined as 2-dimensional elements placed on a finished article for decorative purposes.

Pattern

Repeating decorative elements that are all the same

Ornament

Any other decorative element placed on the surface of the finished article

Patents and industrial designs

It is important not to confuse how a product looks with how it works.

Industrial designs protect only the visual features of a product.

To protect functional features of a product, such as what it is made of and how it works, you need to obtain patent protection.

Registering an industrial design in Canada

Register your industrial design by submitting an application to CIPO's Industrial Design Office. Once your design is registered, you get the exclusive right to it in Canada for up to 15 years.

Initial protection
5 years
from registration
+
up to an additional
10 years
if maintained
=
up to
15 years
of exclusive right

The Industrial Design Act is the federal legislation governing industrial designs in Canada.

Why register your industrial design?

A registered industrial design:

What you can register as industrial designs

Here are examples of designs that are registrable in Canada:

Value added by industrial designs

Industrial designs give your products a competitive edge in the marketplace.

To sell a product, there are multiple factors to consider, including its price, functionality, reputation and aesthetics. Consumers are often drawn to eye-catching products. For that reason, manufacturers put a lot of money and know-how into their industrial designs.

This is why a novel design is considered to be valuable IP.

Industrial designs can also be a source of revenue.

Sell your design for a 1-time lump sum.

License your design by allowing another party to use it with specific terms and conditions set in a license agreement. By licensing your design, you continue to own it and earn royalties or a percentage of sales made using the design.

A registered industrial design strengthens your competitive position by deterring others from copying or imitating it.

Apple acquired Beats Electronics in 2014, known for their iconic headphones design.

Start-up companies can use industrial designs as a "wow" factor for their products and quickly set themselves apart from other established and reputable brands.

Industrial designs are also becoming increasingly important in a design-conscious economy, and they can be a fundamental element in the growth of innovative companies.

Did you know? Firms holding industrial design registrations have 16% greater revenue per employee, compared to firms without such registrations.

Source: IP Canada Report 2017

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Using industrial designs strategically

Align the design with the technology

Think of consumer electronics such as smartphones. Many consumers appreciate a sleek and visually appealing shape for their phones, as well as distinctive icons on the display. Such aspects could be protected as industrial designs.

Others look for technical features for their phones, such as wireless capabilities or built-in speakers. Those could be protected with patents.

Why not create a synergy between technical features and visual appearance from the start?

By focusing on both patents and industrial designs in parallel, you can merge form and function to create products that are easy to use and functional, but also distinctive and visually appealing to consumers.

Extend the protection of your design through a trademark

Industrial design registration provides an exclusive right for up to 15 years from filing.

In some instances, it may be possible to extend the protection for your novel design through a trademark.

Trademarks are used to distinguish the goods or services of one person or organization from those of another. The shape of a product or its packaging can be an aspect that distinguishes it from other products.

To qualify, your product's shape or packaging must have acquired enough distinctiveness in the marketplace that consumers across Canada can associate the design with your company brand.

Here are some well-known industrial designs that are currently protected as trademarks:

Export your design

Industrial design registration is only valid in the country where the protection was sought.

If you intend on exporting products to which your novel design is applied, or if you intend to license the manufacturing, sale or export of such products to other parties in foreign countries, consider protecting your design in the applicable countries. This can be done by:

For more information, consult the WIPO web page on the Hague System.

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Applying for an industrial design registration in Canada

Be the first to file

Generally, registration of an industrial design goes to the first person who filed an application.

File as soon as possible in case someone else is on a similar track.

Only the owner of an industrial design or a person authorized by them can file an application.

Preserve the novelty of the design

Keeping your design secret before filing is crucial to prevent others from filing for the same design before you.

To maintain novelty, consider confidentiality and non-disclosure agreements to prevent the design from becoming known to the public.

If your design is made available to the public, it may no longer be considered novel in certain countries.

However, in case of disclosure, Canada provides a 12-month grace period, which means you must file for registration within 12 months after the disclosure.

Search industrial design databases

Before you file, search the databases of registered industrial designs and pending industrial design applications that were made available to the public.

This will help you find anything already on the market that may be identical or that does not differ significantly from a design you wish to protect.

Start with the Canadian Industrial Designs Database on CIPO's website.

Search within descriptions, names of finished articles, registration dates, classification codes and names of current proprietors.

Because your design has to be novel in the world, search international databases for registered designs worldwide.

Understand the application process

To register your industrial design in Canada, you can choose between 2 filing avenues.

Learn more about each application process:

Submit your application

When applying directly at CIPO, you may file your application and pay fees online or mail us your application and payment.

Your application must include:

See additional content that you may need to include in your application, where applicable.

CIPO aims to provide client-friendly e-services for the entire registration process, from filing to registration, and is continuing to make improvements to its online services.

Examination of your application

An examiner will review your application to make sure it meets the requirements of the Industrial Design Act and that your design is registrable.

The examiner will then either allow your application for registration or issue a report setting out the objections to registration. If a report is issued, you will be invited to respond to the objections but must do so within the following 3 months.

Registration of the design

If your application is allowed for registration, your design will be registered as soon as possible.

You will then receive a Notice of Industrial Design Registration, which indicates that your design has been registered, and a notice explaining how to maintain your exclusive right.

Standard fees

Consult the list of fees for industrial designs.

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Managing your industrial design

Maintain the protection of your design

Your industrial design exclusive right can last for up to 15 years from the date of filing.

To maintain the exclusive right to your design beyond the initial 5 years from registration, you must pay a maintenance fee before the end of the 5 years. By doing so, you get up to an additional 10 years of exclusive right to the design.

Monitor industrial design infringement

It is your responsibility to make sure no one is infringing on your exclusive right.

To claim infringement, you must be able to prove that you have a valid registered industrial design and that another party is using the same design or a design not differing substantially from it, applied to the same product.

Consider seeking the help of an IP professional, as infringement matters are quite complex.

Mark your products

It may be a good idea to mark your product to show that your design is registered as an industrial design. It is suggested to mark the product with a capital "D" inside a circle and add the design owner's name or abbreviation on the article, label or packaging.

Marking your product correctly could help you if you ever need to go to court because someone has infringed on your design. It could help show that the infringer was aware that the design was registered.

Enforce your rights

It is your sole responsibility to enforce your rights.

You may take legal action before the courts against anyone who infringes on your industrial design in Canada. You must do so within 3 years of the alleged infringement.

Consider alternative dispute resolution methods such as arbitration, mediation and negotiation as means to solve IP litigation situations.

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Resources

CIPO website – Industrial designs

Start with the industrial designs web page on the CIPO website. It contains a wealth of resources related to industrial design protection in Canada.

Consult the industrial designs web page to learn more.

Patent Appeal Board

If you receive a Notice of Possible Refusal maintaining the objections to your industrial design registration, you may ask the Patent Appeal Board to review the decision.

The Board will make recommendations to the Commissioner of Patents, who will either reverse the decision or support it in a final refusal.

Consult the Patent Appeal Board web page to learn more.

World Intellectual Property Organization

WIPO has a resourceful section on industrial designs and provides an international angle to industrial design protection, as well as information on the Hague System.

Consult the WIPO web page on industrial designs to learn more.

IP professionals

You may wish to hire a legal professional knowledgeable in IP to provide expert advice on industrial design protection and guide you through the application process.

IP professionals can:

CIPO provides a list of trademark agents and registered patent agents who are authorized to represent applicants before the Office and are knowledgeable regarding industrial designs.

Note: CIPO cannot recommend any particular one for you.

Hiring an IP professional

For more information on choosing and consulting an IP professional, as well as the related cost, consult CIPO's resource on hiring an IP professional.

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Final word

Thank you for completing the Industrial designs – Learn the basics online module!

Industrial designs can build the value of your brand. Large international companies and well-known brands apply for industrial design protection. It is valuable, as visually appealing and novel designs can influence consumers in their purchase decision.

It also helps companies stand out from the competition and evoke emotions in consumers that tie them to the brand and product.

Make the most strategic use of your registered industrial design so that you can reap the rewards of your forward-thinking designs and overall competitive edge!

To learn more on IP rights, consider taking the other online modules on patents, trademarks and copyright to see how they could also protect your innovation and support your business growth.

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