Companies often consider patent and/or trademark protection when contemplating how to protect their intellectual property. Industrial design protection, which is less well known, may, however, be easily overlooked. A Canadian industrial design registration can be used to protect visible features of an article that are judged solely by the eye, for a term of up to 10 years. A U.S. design patent provides a similar form of protection.
There are various reasons that industrial design protection may be overlooked. It might not be readily appreciated, for example, that many products may be eligible for both patent and design protection. Furthermore, the range and variety of designs that may be registered as an industrial design in Canada (or a design patent in the U.S.) may be surprising. Some products include designs that are less commonly thought of and/or less obvious, but which may still be registered. A few illustrative and interesting examples of types of designs that have been registered are discussed below.
It may not be surprising that the appearance of kitchen utensils and appliances may be eligible for design protection. However, the outward appearance of food products themselves has also been the subject of design protection in both Canada and the U.S. For example, the appearance of food products, including chocolate bars, pancakes, waffles, meat products, etc., has been the subject of Canadian industrial design registrations and U.S. design patents. The appearance of a "spiral sausage" is covered by Canadian Industrial Design Registration No. 136185, and the appearance of a "waffle" is covered by Canadian Industrial Design Registration No. 88890 (shown below).
Figure 1 of Canadian Industrial Design Reg. No. 88890
Another common subject for design registrations is electronic devices that include displays (such as televisions, mobile communication devices, portable DVD players, etc.). Such design registrations are often aimed at protecting the features of the physical form of such devices. However, industrial design registrations have also been granted in Canada for the appearance of a screen and/or content that is displayed on an electronic display. Canadian Industrial Design Registration Nos. 131314 and 133390 are specific examples of registrations of display screens for electronic devices. Figure 1 of Registration No. 133390 is shown below. The registered design, in this case, consists only of the portions (i.e. icons) shown in solid lines. The stippled line portions of this display are not part of the registered design. Therefore, the registration can be enforced against products that vary or omit the stippled line portions.
Figure 1 of Canadian Industrial Design Reg. No. 133390
As another example, U.S. Design Patent No. D661,704 shows a Google Maps Location Indicator. Figure 1 of this design patent is shown below.
Figure 1 of U.S. Design Patent No. D661,704
Design protection may be available for patterns and pictures applied to an otherwise conventional article. For example, designs of decorative features of plates, paper, tartans, table cloths, etc. may be eligible for registration. A specific example of an "embossed absorbent paper product," from Canadian Industrial Design Registration No. 96515, is shown below.
Figure from Canadian Industrial Design Reg. No. 96515
As another example, the design of a lottery ticket is the subject of Canadian Industrial Design Registration No. 139577.
Figure 1 of Canadian Industrial Design Reg. No. 139577
Further interesting examples of products for which industrial design registrations have been obtained in Canada include soap bars, springs, pet food, jewelry and other accessories, keyboards, electrical plug bodies, electrical outlets, screws, game boards, clothing designs, tire treads, and so forth. The specific examples shown and discussed above are obviously not an exhaustive overview of less common types of designs that may be eligible for protection in Canada or the U.S. However, these examples illustrate that there is room for creativity and imagination when considering what product features may be the subject of an industrial design application.
Compared to patents, the cost of applying for an industrial design registration is relatively low, and the length of time from the application filing date to the registration of a design is also relatively short. In view of the relative simplicity and inexpensive nature of applying for an industrial design in Canada, companies should consider whether industrial design registrations would be a worthwhile addition to their intellectual property portfolios.
Patrick J. Laycock, Ottawa
The preceding is intended as a timely update on Canadian intellectual property and technology law. The content is informational only and does not constitute legal or professional advice. To obtain such advice, please communicate with our offices directly.