Legal Commentary

Registering a creative industrial design is a way for a company to protect one kind of brand identification

By David Canton

For the London Free Press - June 22, 2009

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Registered industrial designs are less well-known than other types of intellectual property protection, but can be a valuable tool in the right circumstances.

A registered industrial design protects unique features of shape, configuration, pattern or ornament applied to an article.

Automakers often obtain industrial design registrations for things like the shape of a grille or taillight. A furniture maker might apply for the design of a chair.

Industrial designs are available for non-utilitarian parts of an object that are new and unique. It’s a feature that appeals to the eye.

Take, for example, a common garden hook that holds a hanging flower basket. The portion that holds the hanging basket is generally a small hook at the bottom of an inverted U-shape. That design is both utilitarian and in common use, so no industrial design could be registered for that for both reasons.

If, however, you wanted to make a unique garden hook with an unusual design that serves no purpose other than decoration, an industrial design registration could be obtained for that unique shape.

Once that registration is obtained, the registrant can stop anyone else from selling a hook that looks like that in Canada for10 years.

It is thus a useful way to brand your product and differentiate it from competing products.

Industrial designs are often thought of as being like a utility patent, which protects useful inventions. Indeed, in the United States, registered industrial designs are known as design patents and are registered within the patent registry.

In reality, industrial designs are more akin to a cross between copyrights and trademarks. A trademark protects words or images used to brand products or services, while copyright prevents the copying of artistic works.

So how does one go about obtaining an industrial design?

The first thing to note is that one cannot register a design more than one year after the design was first made public. And because the goal is to prevent others from selling a similar appearing article, it’s a good idea to make the application before or as soon as possible after the article goes to market.

Applications are made by filing drawings and/or photographs along with appropriate descriptions with the Canadian Intellectual Property Office. The application will be reviewed by an examiner for technical correctness and to determine if anything similar is already registered. The nature of the drawings required can be quite technical.

Anyone who produces tangible goods would be well served to search industrial design registrations before launching their own designs, to ensure that they are not infringing someone else’s design.

Next time you buy something that has a unique shape or design to it, look for the registered industrial design symbol — being a capital D within a circle beside the design owner’s name.

Full post as published by eLegal Canton on June 22, 2009 (boomark / email).