Stand out from your competitors (Page 3 of 4)

Types of IP Rights

Formally protect your IP assets

The following section deals with the protection of your creations through the formal intellectual property (IP) system. It is only intended as an introduction to IP. You can obtain detailed information on the registration and examination process by simply contacting our Client Service Centre.

Patents, trademarks, industrial designs, integrated circuit topographies and plant breeders' rights are all legally protected under the Canadian IP system. Copyright protection is automatic, however registration may be useful to prove ownership, for example in infringement cases. Ownership of these rights is the legal recognition, and reward, you receive for your creative effort. You can own, sell, license or bequeath IP in much the same way you would acquire a building or a piece of land.

In some ways, the acquisition of IP rights is like having a receipt for your IP. It raises the bar for anyone who wants to challenge your right to that property. Once acquired, there is good reason to believe that you do own the rights to this property; legally, this is called prima facie evidence of exclusive ownership across Canada. It changes the burden of proof. You do not have to prove you own the IP — your opponent has to prove you do not own it.

IP rights can also enhance the value or worth of your business in the eyes of investors and financing institutions. In the event of a sale, merger or acquisition, IP assets may significantly raise the value of your enterprise, and at times may be the primary or only true assets of value.

You should therefore contact the relevant government organization (see below) if you want to benefit from the legal protection that the IP system offers.

The five types of IP protection administered by CIPO vary in the protection they provide and in the length of time for which protection is covered. A tariff of fees also applies to each type of protection.

The Plant Breeders' Rights Office, which is part of the Canadian Food Inspection Agency (CFIA), administers the Plant Breeders' Rights Act and Regulations which provide legal protection to plant breeders for new plant varieties for up to 18 years. You can contact the organization for more information on the subject. Visit the CFIA Website or call 613-225-2342.

Thinking of exporting or expanding your business internationally?

Even if you have secured protection for your IP in Canada, you should consider seeking similar protection in your target markets or where you will find manufacturing competition. Learn about the laws in the countries of interest. You will find on our Website a list of domestic and international links.

Patents

Whether you are in the business of developing cutting-edge technology or making improvements to well-known products, apparatus or processes, it is in your best interest to learn more about patents.

Patents are government grants that give inventors exclusive rights to their inventions. Patent protection applies in the country that issues the patent. In Canada, this protection extends for 20 years from the date of filing. Patents are granted for products or processes, apparatus or improvements thereof, that are new, workable, and ingenious (novel, useful and inventive). In this way, patents serve as a reward for ingenuity.

Patents can be sold, licensed or used as an asset to negotiate funding. In exchange for this benefit, inventors are obliged to provide a full description of their invention so that all Canadians can learn and benefit from the advance in technology and knowledge.

To be eligible for patent protection, the invention must be new (first in the world). Second, it must be useful (functional and operative). Finally, it must show inventive ingenuity and not be obvious to someone skilled in that area.

The invention can be a product (a door lock), a composition (a chemical composition used in lubricants for door locks), an apparatus (a machine for making door locks), a process (a method for making door locks) or an improvement on any of these.

In Canada, patents are given to the first applicant. Therefore, it is wise to file as soon as possible after completing an invention, in case someone else is on a similar track.

Public disclosure of an invention before filing may make it impossible to obtain a patent. There is an exception in Canada if the disclosure was made by the inventor, or by someone who learned of the invention from the inventor, less than one year before filing. Most other countries require filing before use or written disclosure anywhere.

Registered patent agents can help inventors with the many complexities of patent law. CIPO recommends that most inventors make use of an agent's services. Registered patent agents must pass rigorous examinations in patent law and practice before they may represent inventors.

A win-win situation

When filing for a patent, the applicant commits to providing the government with a full description of its invention in return for possible patent protection.

To enrich the total body of technical knowledge in the world, the details of patent applications filed in Canada are disclosed to the public after an 18-month confidentiality period.

In this way, patents provide not only protection for the owner but valuable information and inspiration for future generations of researchers and inventors.

Trademarks

One of the most important assets your business has is its brand. You use your brand to promote your products and services and by doing so you help your customers identify your products with your company and reputation. Your brand creates value by helping your customers differentiate your products from those of your competitors. The investment you have made in these brands and corporate identities can be protected under the Trade-marks Act.

A trademark is used to distinguish the products or services of one person or organization from those of others in the marketplace. Trademarks come to represent not only the actual products and services but the reputation, experience and expertise of the business.

Types of trademarks

Ordinary trademarks are words or designs or a combination of these that distinguish your products and services. If you are currently selling your products or services you are probably already using a trademark without knowing it or even having it registered with CIPO.

Some companies use distinctive shapes or wrappings of their products to help their customers differentiate their products from those of others. This wrapping or shape may not have any of the elements of an ordinary mark but could be registered.

What about your company name? Can it be used as a trademark? Your company name can be registered as a trademark only if you are using the name of your company to distinguish your products and services from those of others. The fact that you have protected your trade name at the federal or provincial level does not equate to having a registered trademark.

Why is it important to register your trademark?

You are not required to register your trademark but it is highly recommended. Registering your trademark will help you to protect it from imitation and misuse. Owning a registered trademark gives you the exclusive rights to its use throughout Canada for 15 years and is renewable after that. By registering your trademark you can more easily protect it through legal proceedings.

Preparing a trademark application can become a complex task, particularly if a third party challenges your right to the mark. You may file on your own, but seeking advice and direction from a registered trademark agent can be of great help and value.

Copyright

Any original literary, dramatic, musical or artistic work is subject to copyright from the moment it is created. Paintings, safety instructions, web pages, how-to manuals and a prospectus, for example, are all copyrighted.

Copyright law protects the expression of the idea; it does not protect the ideas embodied in the work. There are two rights in a creation: a right in the physical property of the creation itself, and a right in the intangible property.

Copyright protection is automatic. Using your copyright more effectively is largely a matter of informing yourself about the complex ways that copyright can be used and licensed from, or to other people. Because you own the copyright on these materials, you can control the ways they are used; others who want to use the materials will have to buy or obtain permission from you to have the right to do so. You can also limit the ways they use the materials so that the value of your investment is protected.

Generally, the owner of the copyright is the creator of the work. However, if you create a work in the course of employment, the copyright belongs to your employer unless there is an agreement to the contrary. But you are still the author of your creation.

Although copyright protection is automatic as a matter of common law or civil right, there are still benefits to registering your copyright. It is evidence that your work is protected by copyright, and may make an important difference in case of a legal dispute.

Upon registration of a copyright, a certificate is issued providing evidence that the person registered is the copyright owner. This certificate delivered by CIPO can be used in court to establish ownership.

Generally, copyright in Canada exists for the life of the author plus 50 years following death. After that, the work becomes part of the public domain and anyone can use it. However, there are some exceptions. You can obtain more details by contacting our Client Service Centre.

Did you know?

Shakespeare's plays are part of the public domain; everyone has an equal right to produce or publish them.

Industrial designs

If you invest a lot of hard work producing distinctive new products, you will want to learn more about the benefits of registering your designs. An industrial design comprises those features of a product that appeal to the eye. Specifically, it is the features of shape, configuration, pattern or ornament, or a combination of these, as they are applied to a finished article. For example, your design could be a new shape for the hood and fenders of a car, the features of ornamentation of a piece of jewellery, the original pattern in a woven sweater, or all of the visual features of a computer monitor. The visual appeal of a product provides businesses with a competitive edge in the marketplace, setting their products apart from others and making their product the one consumers will buy.

It is important to note that a design must be registered in order to have protection against infringement. By registering your industrial design, you get exclusive rights for up to 10 years. A registered industrial design will give you a legally enforceable right to use your product's design to gain a marketing advantage. It also prevents others from manufacturing or selling the design without your permission. As owner of the design, you are able to sell those rights or license others to make, use and sell your design.

To be eligible for registration, a design must be original. That is, it must not closely resemble a design already registered. Also, industrial design registration is intended to protect new designs and not those that have been in the marketplace for some time. Apply to register your design as early as possible. Once the design has been made public, you have one year to file the application.

When seeking industrial design protection, you need to be aware that the protection you receive is for the appearance of the article. The protection does not extend to aspects protected by a patent such as how the product functions, how it is constructed or what materials it is constructed from.

What is the difference between a patent and an industrial design?

An industrial design relates to the appearance of a product or part of a product.

A patent is concerned with the function, operation, manufacture or material of an item.

Integrated circuit topographies

Integrated circuit topographies are three-dimensional circuit designs used in technology ranging from electronics in cars and household appliances to robots and spacecraft.

Because this is still a relatively young field, new approaches and standards are being developed by both the industry itself and, in response, by the government agencies that regulate the industry. Understanding these regulations and the way they apply is valuable not only for protecting your IP but also in planning your business strategies.

An integrated circuit topography protects the three-dimensional shape of the interior of the integrated circuit, i.e., their elements and interconnections. It is much like a topographic map of the interior. Often people confuse printed circuit board and integrated circuit, commonly called microchip or chip. The board comprises many elements and one of them may be an integrated circuit.

To qualify, a topography must be developed through the application of intellectual effort, and not by the reproduction of all, or a substantial part, of another topography. Integrated circuit topography protection lasts to the end of the tenth year (December 31) from the date of filing of the application, or from the date of first commercial exploitation of the topography, whichever is earlier.

The legislation permits owners of registered topographies to exclude others from:

  • reproducing a protected topography or any substantial part of one;
  • manufacturing an integrated circuit product incorporating the topography or a substantial part of one;
  • importing or commercially exploiting (which includes the sale, lease, offering or exhibiting for sale or lease, or other commercial distribution) a topography or a substantial part of one, or of an integrated circuit product that embodies a protected topography or a substantial part of one; and
  • importing or commercially exploiting an industrial article which incorporates an integrated circuit product that embodies a protected topography, or a substantial part of one.

A full range of avenues for civil recourse, including injunctions, damages and exemplary damages, is available to the owners of registered topographies. In addition, a court may require Canada Customs and Revenue Agency to stop products that violate an owner's right from entering the country.