ARCHIVED — Industrial design notices
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Prior art searches
2004-12-06
Subsection 6(1)
For the purposes of applying Sub-section 6(1) of the Industrial Design Act in respect of a design that is the subject of application for registration, the Office conducts a search of the Canadian Register of Industrial Designs for registered designs that are identical to the applied-for design or that so closely resemble the applied-for design as to be confused with it. Where the Office finds such a registered design, the Office sends the applicant a report pursuant to Sub-section 5(2) of the Act objecting to registration of the design.
The Office also conducts a search of all pending applications having an earlier filing date (here referred to as “previous applications”) for designs that are identical with the applied-for design or that so closely resemble the applied-for design as to be confused with it.
Note: Where, in respect of the subject application or the previous application, priority is claimed in conformity with section 29 of the Act, the priority date is considered to be the filing date of that application.
Where the Office finds such a previous application, the next steps of the Office depend upon whether the previous application was filed by the same or a different applicant:
- Where the Office finds such a previous application filed by a different applicant, the Office does not permit the subject application to proceed to registration as long as the previous application is pending. If the previous application proceeds to registration, the Office sends the applicant of the subject application a report pursuant to Sub-section 5(2) of the Act objecting to registration of the design in accordance with Sub-section 6(1) of the Act. If the previous application does not proceed to registration and ceases to be pending (including as a result of abandonment, once the reinstatement period has expired, withdrawal or refusal), the Office proceeds with registration of the subject application if all other requirements of the Act are complied with.
- Where the Office finds such a previous application filed by the same applicant and considers both the subject application and the previous application to cover registrable designs, the Office registers both designs on the same day.
Subsection 6(2)
The Office does not conduct any search of prior art for the purposes of applying Sub-section 6(2) of the Industrial Design Act. In particular, the Office does not conduct any search of prior art for the purpose of determining whether the applied-for design is original.
Note: For the registration of a design to be valid the design must be original, meaning that there must be some substantial difference between the new design and what had theretofore existed (See Clatworthy v. Dale Display, [1929] S.C.R. 429 at 433).
Subsection 6(3)
For the purposes of applying Sub-section 6(3) of the Industrial Design Act in respect of a design that is the subject of application for registration, the Office conducts a search of published art for designs that are identical with the applied-for design. Where the Office finds such a published design, the Office sends the applicant a report pursuant to Sub-section 5(2) of the Act objecting to registration of the design. It should be noted that the Office considers that Sub-section 6(3) is limited in its application to published designs that are identical to the applied for design and has no application to published designs that are similar but not identical to the applied for design.
