Protecting an Article’s Aesthetic Appeal

Intellectual property can be an important issue for start-ups. Technology (or other proprietary information) can account for a substantial portion of a corporation’s value, especially in the early stages of a business. You have probably heard of patents, trademarks, and copyright but there are also other types of intellectual property. If the appearance of a product you are developing is an important element of your business plan, you may want to learn more about industrial design.

Industrial design refers to the “features of shape, configuration, pattern or ornament and any combination of those features that … appeal to and are judged solely by the eye” [1] in a finished product. Further, the Canadian Intellectual Property Office (CIPO) recently clarified that colour can also be a part of the combination of features that make up the design.[2] More simply: industrial design means the aesthetics of a finished article.

Registering an industrial design with CIPO can protect a product’s appearance. This protection is provided by the Industrial Design Act[3], last for ten years[4], and does not preclude protection of the same product via patent or trademark.[5] A product’s design can differentiate it just as much, if not more, than the technology that product contains or the brand associated with it. Consider: an Eames Lounge Chair (brand = Herman Miller) or a Kitchenaid stand mixer. Although industrial design would not protect the underlying code, it can protect the aesthetic aspects of software (graphics, icons, computer-generated animations) if certain requirements are met. For example, Apple registers industrial designs with CIPO to protect graphics that appear in its apps (see: industrial design registration no. 172083).[6]

If you would like more information about industrial design or other forms of intellectual property, feel free to reach out to us! A student at the clinic may be able to draft a memo that provides the information you need.
 
Britta Graversen works with the BLG Business Venture Clinic and is a third year student at the University of Calgary Faculty of Law. She has presented on IP law at the Haskayne School for Business to ENTI 317 students. 
 
[1] Industrial Design Act, s 2.
[2] https://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr04233.html
[3] R.S.C. 1985, c. I-9
[4] Industrial Design Act, s 10(1).
[5] United States Playing Card Co.'s Application, Re (1907), [1908] 1 Ch. 197 (Eng. Ch. Div.); Werner Motors Ltd. v. A.W. Gamage Ltd. (1904), [1904] 2 Ch. 580 (Eng. C.A.); Werner Motors Ltd. v. A.W. Gamage Ltd. (1904), 21 R.P.C. 137; Moody v. Tree (1892), 9 R.P.C. 333.
[6] https://www.ic.gc.ca/app/opic-cipo/id/dsgnDtls.do?appNm=172083&lang=eng&status=OK