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A Rough Guide to Intellectual Property in Canada

Intellectual Property in Canada

Intellectual property can be thought of as stemming from creations of the mind and includes inventions, literary works, art, names, and logos, and designs. Intellectual property can be protected through patents, copyright, trademark, industrial designs, and trade secrets in Canada. Patents protect inventions in the country of issue. Copyright protects original works. Trademarks protect words and designs that can be used for brand recognition. Industrial designs protect aspects of a product’s appearance. Finally, trade secret laws protect information that adds value to the business based on its secrecy.

Intellectual property rights are governed by both statutory and common law in Canada. The Canadian Intellectual Property Office (CIPO) oversees applications and registrations for exclusive intellectual property rights based on statutes. The exclusive rights and protections allow for people to earn financial rewards in the marketplace which would not otherwise be available.

Patents

Patents protect inventions from being made, used, or sold by others. Patents are granted by CIPO and are generally valid for 20 years after filing. A patent may be granted if the invention is found to be novel and not obvious to someone skilled in the field in which the invention relates. The invention must also work to be able to be patentable and constitute eligible subject matter for a patent.  

A patent application is generally made publicly available to inspection by others 18 months after filing. Maintenance fees are due on anniversaries of the filing date commencing two years from filing of the application. Small entities, which include entities with fewer than 50 employees or universities, pay a lower fee than the standard fee for maintaining an application or patent. Failing to pay a maintenance fee can lead to abandonment of the application or lapse of the patent.

Trademarks

Trademarks protect names or images that are used for brand recognition for commerce. Like copyrights, trademarks do not need to be registered to offer some degree of protection. However, registration of a trademark provides much greater benefit. As an example, your trademark is enforceable across Canada without having regard to how well it may be known in different regions of the country. In Canada, a trademark registration is valid for 10 years but can be renewed.

Copyright

Copyright protects original works. It is used to protect creative works such as literary works, artistic works, and musical works. Copyright can also be used to protect aspects of computer programs and architectural designs.

The copyright symbol, ©, may be used to notify a person that a work is protected by copyright but is not required to be used for copyright to subsist in Canada. Copyright does not need to be formally registered to offer protection, but it is often recommended as doing so makes enforcement of your rights easier.

Industrial Designs

Industrial designs protect original visual features of a finished article. The visual features that can be registered include shape, configuration, pattern or ornament, or a combination of those features. For example, the shape of a chair or the pattern of a tablecloth may be protected. The method and materials are not protected by the registration. The length of the term of a registered design can until 15 years after filing if the registration is renewed at 5 and 10 years after registration.

Trade Secrets

A trade secret is business information that derives value from its secrecy. A popular example is the Coca-Cola formula. Without the formula being kept secret, the business would not be valuable as others could exactly reproduce their product. Trade secrets include marketing and sales systems, distribution methods, client and customer information, supplier lists, and algorithms and formulas. Trade secrets do not have an application or registration process in Canada. Employment agreements and non-disclosure agreements may be used protect your trade secrets. Trade secrets can be an alternative to applying for a patent in some cases.

There are multiple options available to protect intellectual property in Canada. If you are interested in protecting your creation by acquiring intellectual property rights, it is worthwhile to seek counsel from someone with expertise in intellectual property law. Intellectual property lawyers and patent and trademark agents can provide guidance in the application process as well as advise which forms of protection are best for your creation.

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