May 20, 2019

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Intellectual Property Law in Canada

Intellectual property law in Canada is governed on a federal level by six key statutes dealing with patents, trademarks, copyright and industrial design. In addition, there are acts dealing with integrated circuit topography and plant breeders’ rights.

The Canadian Intellectual Property office (CIPO) handles matters pertaining to all the above acts except the Plant Breeders’ Rights Act, and maintains registries of patents, trademarks, copyrights, industrial designs and integrated circuit topography.

Patents

An invention can be protected by patent in Canada if it is novel and has not been publicly revealed, can be used in the way it is intended, and demonstrates an inventive step or inventive ingenuity that is not obvious to someone skilled in the art.

Once granted a patent, an inventor has the exclusive rights to the manufacture, use, or sale of the invention. The patent subsists for 20 years from the date of filing.

Trademarks

A trade-mark used to identify the services or goods of a person, business or organization can be registered in Canada. Successful registration can be completed within 24 months of the filing date. The holder of a registered trademark has the exclusive right to the trade-mark for 15 years. Trademarks can be renewed for further periods of 15 years.

An applicant must have commenced use of a trade-mark in Canada before the trade-mark can be registered.

Copyright

All artistic, literary, musical, and dramatic works are copyrighted so long as the creator is a citizen or resident of Canada or another country which is a party to the International Copyright Convention, otherwise known as the Berne Convention, and the Universal Copyright Convention.

Copyright expires fifty years after the death of a creator of a work. Registration is not mandatory for copyright to be recognized but may be useful in deterring potential infringers from claiming the defense of innocent infringement in the event of a suit.

Industrial Design

An application to protect an industrial design must be filed domestically within one year of the first time it is made public anywhere in the world. Registration may only be applied for by the creator of an industrial design, unless the design was part of the work commissioned by another person, business or organization and that person, business or organization owns the rights to the design.

Shapes or designs may be registered and can be protected for five-year periods. The use, manufacture and sale of goods bearing that shape will be prohibited during the protected period. Protection can be renewed for one additional period of five years.

Integrated circuits

The Integrated Circuits Topography Act allows for the protection of rights to integrated circuits topography. The creator of the topography of design may be granted a ten-year right to manufacture, reproduce and sell or use for commercial gain the protected topography and integrated circuit.

Plant breeders’ rights

Unlike the other forms of intellectual property rights, plant breeders’ rights under the Plant Breeders’ Rights Act and Regulations are administered by the Plant Breeders’ Rights Office, an arm of the Canadian Food Inspection Agency.

New varieties of plant can be protected by their breeders who will gain the exclusive right to sell the seeds or other propagating material, use the breed for reproduction and allow a third party to use the breed. Protection subsists for a maximum period of eighteen years and can be renewed.