Superior visual aesthetics are an important competitive advantage in many market sectors, including fashion, housewares and consumer electronics.
Intellectual property protection has long been available for visual aesthetics, under names such as design patent and design registration; however, it has been cumbersome and expensive to pursue and maintain in multiple jurisdictions. Conventionally, countries have had their own substantive and procedural design regimes, with little harmonization between them. For example, design representations (photographs, line drawings, CAD renderings) required for registration in one jurisdiction might be completely unacceptable in another, thus requiring duplication of effort and expense.
Particularly in a fast-fashion market, design protection must be relatively quick and inexpensive to acquire in order to be useful.
In response to the above shortcomings, a harmonizing treaty called the Hague Agreement Concerning the International Registration of Industrial Designs (the “Treaty”) has been gaining momentum. The Treaty has long covered much of Europe, and within the last year Japan, Korea and the United States have all become members. Canada is amending its design laws with the goal of becoming a member around 2016.
The Treaty enables a design owner to file a single international design application instead of (or as well as) national design applications, if the owner is a national of a member jurisdiction or has a domicile or real and effective industrial or commercial establishment within the territory of a member jurisdiction. The international application designates the jurisdiction in which protection is sought, and is subject to streamlined international examination and maintenance, instead of multiple national administrative procedures.
In harmonizing its design laws for ascension to the Treaty, Canada will be changing the expiration of its design registrations from ten years after the issue date to fifteen years after the filing date. Although currently Canadian applications are non-public until issuance, harmonization requires publication not later than thirty months after the earlier of the Canadian filing date and any priority date. Canada is also using this opportunity to consider other updates to its design laws, for example allowing colour to be a protectable design element.
This harmonization process is well underway, but many aspects are still undecided and uncertain. If visual aesthetics are an important completive advantage in your market or your business, you should keep abreast of the harmonization process.
For legal advice regarding the Treaty, please contact the author or any member of our Technology and Intellectual Property Group.