Industrial Designs: Protecting How Your Product Looks

Industrial designs protect how your product looks — and they are often faster and cheaper to secure than founders expect.

When people think about protecting a product, they tend to focus on what it does or what it is called. The way the product actually looks is easy to overlook — and yet, for a great many consumer products, appearance is exactly what customers recognize and competitors copy. The visual appearance of a product, including its shape, configuration, pattern, and ornamentation, can be protected through an industrial design registration. It is one of the most underused tools in the intellectual property toolkit, and often one of the most cost-effective.

What Industrial Designs Protect

An industrial design protects the way a product looks, not the way it works. Think of the distinctive silhouette of a device, the sculpted contour of a bottle, the pattern pressed into a surface, or the ornamentation of a piece of furniture — and design protection is not limited to physical objects sitting on a shelf. In Canada, the graphical user interface of an app, the layout and animation of on-screen icons, and the appearance of a digital dashboard can all be registered as an industrial design, provided the design is shown applied to a screen or device. If customers can identify your product, or your app, across a room by its appearance alone, that look is an asset worth protecting. Design rights let you keep that appearance to yourself, so that competitors cannot trade on a look you invested time and money to develop. Importantly, design protection is concerned with the visual impression a product makes, which is why the quality of the drawings or images filed matters so much.

How Designs Fit Alongside Other Rights

It helps to understand where industrial designs sit in relation to the other tools available, because the boundaries are a frequent source of confusion. A design protects the visual appearance of a product — how it looks. It does not protect how the product works or what it does; that is the domain of other forms of protection entirely. Nor does it protect the brand name or logo applied to the product; those belong to trademark law. And while copyright can protect certain artistic works, it is often an awkward and uncertain fit for the appearance of a functional, mass-produced product, which is precisely the gap industrial design registration was created to fill. Seeing these categories clearly matters because it prevents two costly mistakes: assuming that one type of protection covers something it does not, and paying for overlapping protection you do not need. In practice, the appearance of a well-considered product is often best protected by a design registration working in concert with a trademark for the brand — each doing the job it is suited to, and neither stretched to cover ground it protects poorly.

Design First, Trademark Later

There is a Canadian-specific wrinkle worth understanding here, too. Section 64 of the Copyright Act generally strips copyright protection from a design once it has been applied to a useful article and reproduced in a quantity of more than fifty — beyond that point, a competitor is generally free to reverse-engineer and reproduce the look of the article without infringing copyright, because Parliament intended the Industrial Design Act, not copyright, to govern the appearance of mass-produced goods. One exception to that rule matters a great deal to brand owners: where the design functions as, or incorporates, a trademark, copyright continues to apply notwithstanding mass production. A shape that has become a trademark, in other words, is treated differently than an ordinary design.

That distinction points to a deliberate sequencing strategy. A trademark can protect the shape of a product, but only once that shape has become distinctive of a single source through use — distinctiveness has to be earned, not declared. An industrial design registration requires no such proof, only novelty. That makes it possible to register a distinctive-looking product as an industrial design first, use the up-to-fifteen-year exclusivity that comes with it to build public recognition in the shape while no one else can lawfully sell anything similar, and then, once the shape has genuinely become distinctive, file a trademark application for it. Filed well before the design registration runs out, that application lets a business carry its exclusivity forward — from a design right with a fixed end date into a trademark that can be renewed indefinitely for as long as it stays in use.

By SRM Intellectual Property Law — SRM Insights