IP Primer

IP Primer

A trademark is a unique sign which can include a single word or multiple words, symbol, design, a combination of letters, an invented or coined word, sounds, pictures, or logos. Trademarks are used to identify and distinguish goods and/or services from the goods and services of competitors.

The Trademarks Act also provides protection for other types of marks.

  • A certification mark is a unique sign that is used to convey to the consumer that the related goods and services meet a defined standard.
  • A distinguishing guise provides protection for the shape of goods or their containers, or a mode of wrapping or packaging. In this instance, it is the appearance of the goods that is used to identify and distinguish the owner’s goods in the marketplace.

Trademarks are a valuable business asset and over time can become synonymous of the owner and its reputation in the marketplace.

A registered trademark provides the owner with the exclusive right to use the mark throughout all of Canada for the defined goods and services. The Trademarks Office will assist a trademark owner to police its mark through the examination of newly filed applications and will refuse an application if the trademark is deemed to be confusing with an active trademark on the Register. In addition, a registered trademark is extremely beneficial if the owner intends to license or franchise its business operations and can be used as a basis to register the same trademark in other countries.

Patents protect inventions, which can include a manufactured product, a composition such as a chemical formula, a machine, a process, or an improvement to any of the foregoing.

Generally speaking, patents protect functional, utilitarian aspects of devices, compositions or methods. Patent protection is not available for a mere scientific principal, abstract theorem, an idea, or purely aesthetic features.

A Canadian patent provides the owner with the right to prevent others from making, constructing, using or selling the patented invention for the term of the patent. The term of a Canadian patent is up to 20 years from the filing date of the application for the patent. A patent must be obtained in each country where the inventor wants to protect their invention.

The main pre-requisites to obtain a Canadian patent is that the invention must be:

  • Novel, meaning that the invention must not have been publicly disclosed anywhere in the world or disclosed in a previously filed Canadian patent application by a third party.
  • Non-obvious, meaning that the invention must be inventive from the point of view of a knowledgeable person that is skilled in the designated area.
  • Useful, meaning that the invention has a practical purpose and works as intended.

In Canada and the U.S., an applicant has a one-year grace period from public disclosure of an invention by the inventor or the applicant to file a patent application. In many other countries, however, there is no such grace period, and any prior public disclosure of an invention prevents an applicant from obtaining a valid patent for that invention.

Patents are granted on a first-to-file basis. If two people independently come up with the same invention, the right to a patent for the invention lies with the first person to file an application.

An Industrial Design registration protect nonfunctional visual features of a product. Visual features may include shape, configuration, pattern, or ornament, or any combination of those features. Visual features do not include anything which serves a purely functional purpose for the product.

An industrial design registration provides the owner with the exclusive right to the design in Canada for up to 10 years.

An industrial design must be obtained in each country the owner wants to protect the design and the length of protections may vary from country to country.

To obtain an industrial design, the design must be original which means that the design must not have been publicly disclosed before the industrial design application was filed. There is a limited grace period if the design was disclosed by creator of the design.

Copyright law in Canada has traditionally protected original literary, dramatic, musical, and artistic works. These categories include films and computer programs. Copyright in such works means, with respect to the work or any substantial part thereof, the sole right to produce or reproduce, perform or communicate to the public by telecommunication and includes other more specialized rights in certain cases, such as a rental right, the right to convert a dramatic work into a novel, the right to adapt a literary work as a film, etc. Canadian copyright law also provides “neighbouring rights” in “other subject matter,” namely sound recordings, performers’ performances and communications signals. These rights are somewhat more limited than those provided for the traditional categories of works.

Copyright protection for traditional works generally has a duration of the life of the author plus fifty years. For sound recordings, the term of protection is 70 years from publication.

Canadian copyright law also provides moral rights, which include the right to be associated with a work as an author where reasonable in the circumstances and the right to the integrity of a work or a performer’s performance in order to prevent distortion or mutilation to the prejudice of an author’s or performers’ reputation. Moral rights cannot be assigned. However, they may be waived.

Copyright protection arises automatically in Canada and 172 other Berne Convention countries upon the creation and fixation of an original work or other subject matter. However, registration with the Canadian Intellectual Property Office and the Library of Congress Copyright Office is recommended in the case of commercially important works or in circumstances where litigation may be contemplated. Copyright rights can be enforced in Canadian courts and are often administered collectively, subject to the jurisdiction of the Copyright Board.

Copyright law also includes “users’ rights” of fair dealing for the purpose of research, private study, education, parody or satire as well as criticism or review, news reporting and various other more specific exceptions provided in the legislation.

Plant Breeders’ Rights are a type of intellectual property right by which plant breeders protect new varieties of plants, giving the breeder the exclusive right to produce for sale and to sell, reproductive material of the new variety. The holder of the rights can also protect the name of the approved variety thereby increasing the breeders control over newly developed type of plant in Canada.

The breeder/owner of the Plant Breeders’ Right is given exclusive rights in relation to the propagation material of their new plant variety. Reproductive material is that part of the plant used to reproduce the new variety, and can include things such as seeds, plant cutting or budwood, depending on the type of reproduction of the plant variety.

A variety must be new and distinct from all varieties of common knowledge, uniform and stable in its characteristics. In Canada, varieties of all plant species are eligible for protection however, heritage varieties are rarely eligible, and algae, fungi and bacteria are not eligible for protection under Plant Breeders’ Rights.

Whether you are a gardener, farmer, or an industry professional, if you are developing new varieties of plant, filing an application for Plant Breeder’s Rights can provide you with valuable legal protection and assist you in commercializing your plant varieties.

Circuit products are made up of layers of various electronic components in precise orientations. Integrated circuit topographies (ICT) protect the three-dimensional configurations of electronic components used in integrated circuit products or the layout designs. A Canadian ICT gives the owner the right to prevent others from using, manufacturing, selling, importing or exporting the registered ICT or any product which uses the ICT for up to 10 years. ICT protection must be obtained on a country by country basis and may vary in length or availability by country. ICTs do not prevent others from using equivalent integrated circuits which employ different topographies.

To obtain an ICT, the design must be original. To be original, the ICT must have required intellectual effort, and not just be a reproduction of all, or a substantial part, of another topography. ICTs can be obtained for specific parts of a larger topography structure. An application for an ICT must be filed within 2 years of the first common use of the topography.