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

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Act current to 2022-11-16 and last amended on 2018-11-05. Previous Versions

Industrial Design Act

R.S.C., 1985, c. I-9

An Act respecting industrial designs

Short Title

Marginal note:Short title

 This Act may be cited as the Industrial Design Act.

  • R.S., c. I-8, s. 1

Interpretation

Marginal note:Definitions

 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)

  • R.S., 1985, c. I-9, s. 2
  • R.S., 1985, c. 10 (4th Supp.), s. 20
  • 1993, c. 15, s. 12(E), c. 44, s. 161
  • 2014, c. 39, s. 102

PART IIndustrial Designs

Registration

Marginal note: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.

  • 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.

  • R.S., 1985, c. I-9, s. 3
  • 1992, c. 1, s. 79
  • 2014, c. 39, s. 103

Marginal note:Obvious error

 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. 44

Marginal note: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.

  • 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.

  • R.S., 1985, c. I-9, s. 4
  • 1992, c. 1, s. 79
  • 1993, c. 15, s. 13
  • 2014, c. 39, s. 104

Marginal note:Examination of application for registration

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

  • R.S., 1985, c. I-9, s. 5
  • 1992, c. 1, s. 143(E)
  • 1993, c. 15, s. 13
  • 2014, c. 39, s. 105

 [Repealed, 2014, c. 39, s. 105]

Marginal note: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.

  • 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.

  • R.S., 1985, c. I-9, s. 6
  • 1992, c. 1, s. 80
  • 1993, c. 15, s. 14, c. 44, s. 162
  • 2014, c. 39, s. 105

Marginal note:Registrable design

 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.

  • R.S., 1985, c. I-9, s. 7
  • 1992, c. 1, ss. 81, 143(E)
  • 1993, c. 15, s. 15
  • 2014, c. 39, s. 105

Marginal note: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.

  • 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.

  • R.S., 1985, c. I-9, s. 8
  • 1993, c. 15, s. 16
  • 2014, c. 39, s. 105

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)
 
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