Protecting Product Shape and Appearance under the Industrial Designs Act
This month, we continue our discussion and review the basic principles concerning protection under the Industrial Designs Act.
Appeal To and Be Judged Solely by the Eye
The Act provides that “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. To be protected a design must appeal to and be judged solely by the eye. This requirement limits the scope of the statutory definition of “design.” The relevant perspective is that of the customer. Protection does not extend to a shape selected for its utility rather than its appearance. However, artistic merit or aesthetic value is not required.
A design must also be capable of application to an article so that the article displays to potential customers the shape, configuration, pattern, or ornament that constitutes the design.
Features Applied to a Useful Article Dictated Solely by Utilitarian Function
A design is not registrable if it consists only of features that are dictated solely by a utilitarian function of the finished article. The Act provides that “useful article” means an article that has a utilitarian function and includes a model of any such article, and “utilitarian function,” in respect of an article, means a function other than merely serving as a substrate or carrier for artistic or literary matter.
The exclusion does not apply to ornamental, non-functional features. It applies only where every feature of the design is dictated solely by functional considerations. If the design contains features that are not dictated solely by function, the design as a whole may remain protectable.
To ensure your rights are fully protected reach out to us for a detailed review of your situation.
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John McKeown
Loopstra Nixon LLP.
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Toronto, Ontario,
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This article is of general nature and is not intended to provide specific legal advice as individual situations will differ. Specialist advice should be sought about your specific circumstances. Copyright © John Mckeown, All rights reserved. To unsubscribe to the IP Update please send me an email at jmckeown@Ln.Law
A version of this article originally appeared in the Law360 Canada published by LexisNexis Canada Inc.
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