Practice notice

DESCRIPTIONS

• General
• Description requirements
• Examples of acceptable descriptions
• Highlighting significant features of the design
• Multiple figures in the drawings
• Variants
• Sets
• Optional detail in description
• Amendment of descriptions
• ANNEX - Recommended Guidelines for Optional Detail in the Description
• Comments

General

Under Section 2 of the Industrial Design Act, a design or industrial design is defined as the features of shape, configuration, pattern or ornament and any combination of these features that, in a finished article, appeal to and are judged solely by the eye. The Office considers that a design may relate either to the appearance of the entirety of the finished article to which it is applied or to the appearance of a portion of the article.

In accordance with paragraphs 4(1)(a) and (c) of the Industrial Design Act and paragraphs 9(1)(b), (c) and (d) of the Industrial Design Regulations, an application for registration of a design must include a drawing or photograph of the design, a description of the design that identifies the features that constitute the design, and a title identifying the finished article to which the design is applied.

For an application to be acceptable, it must be clear from the combination of the drawings, the description and the title, what are the features of the design and what is the finished article to which the design is applied.

Description requirements

Bearing in mind the above, the Office considers that an application must contain a description that complies with the following:

1. The description must indicate whether the design relates to the appearance of the entirety of the article or to the appearance of a portion of the article;
2. Where the design relates to the appearance of a portion of the article, the description must indicate what the relevant portion is.
3. The description must make clear which of the visual features (of the article or relevant portion thereof) shown in the drawings comprise the design, i.e., whether the design consists of all of the visual features or only certain features such as the features of shape.

Examples of acceptable descriptions

1. The design consists of the features of ornament of the handle of the spoon shown in the drawings.
2. The design is the shape of the back of the chair shown in the drawings.
3. The design consists of the features of shape, ornament, pattern and configuration of the entire bookcase shown in the drawings.
4. The design is the shape of the entirety of the kettle shown in the drawings.
5. The design is the visual features of the entirety of the kettle shown in the drawings.

Descriptions such as "The design is as seen in the drawings" or "The design is characterized by the enclosed drawings" are considered to be ambiguous and not acceptable.

Highlighting significant features of the design

It is acceptable to include in a description an indication that a particular feature is considered to be an important feature of the design. An example of an acceptable description is: "The design consists of the features of ornament of the handle of the spoon shown in the drawings. The most significant feature of the design is the appearance of the rose at the base of the handle."

Any feature of the design that is referred to in the description must be visible in the drawings or photographs. Reference should not be made to features of the design that cannot be seen in the normal use of the article. Where the finished article consists of an assembled article, the description should not make reference to features that can only be seen in the unassembled state.

Although it is acceptable to highlight a particular feature of the design, it is important that it still be clear from the description what constitutes the design. An example of an unacceptable description is: "The design consists of the features of ornament of the handle of the spoon shown in the drawings particularly the appearance of the rose at the base of the handle." This is not considered acceptable since it is unclear whether the design consists of all the features of ornament on the handle of the spoon or consists only of the appearance of the rose at the base of the handle.

Multiple figures in the drawings

Where the drawings or photographs in an application contain more than one figure, the description should identify what is shown in each figure. An example of an acceptable description is: "The design is the shape of the entirety of the kettle shown in the drawings. Figure 1 is a bottom view of the kettle. Figure 2 is a top view of the kettle showing the kettle with the lid in open position. Figure 3 is a top view of the kettle showing the kettle with the lid in closed position."

Variants

Where the drawings or photographs in an application show variants (i.e., designs applied to the same article or set and not differing substantially from one another), the description should indicate the number of variants and indicate which figures relate to which variant. An example of an appropriate description is: "The designs consist of the features of ornament of the handles of the spoons shown in the drawings. The drawings show two designs that do not differ substantially from each other. Figures 1 and 2 show the first variant and Figures 3 and 4 show the second variant"

Where an application contains variants, the description may include a brief explanation of the differences between or among the designs. Examples of appropriate explanations would be: "The second variant has an additional row of pattern"; "The second variant has a small rectangle on the bottom"; "The second variant has an additional drawer"; "The third variant has a second disk drive"; and "There are more circular buttons on the third variant."

Sets

Where the drawings or photographs in an application show a set (i.e., a number of articles of the same or general character ordinarily on sale together or intended to be used together, to each of which the same design or variants thereof are applied), this should be indicated in the description. An example of an appropriate description is: "The design consists of the features of ornament of the handles of the cutlery articles shown in the drawings. The drawings show the design applied to a set of cutlery articles, the set consisting of a knife, a fork and a spoon."

Optional detail in description

Although not considered necessary by the Office, an application may include a description that is more detailed than those suggested above provided that the description complies with the above and that the additional detail accurately describes features visible in the drawings or photographs. Recommended guidelines concerning the inclusion of optional detail in the description may be found in the annex to this practice notice.

Amendment of descriptions

Subsection 16(2) of the Industrial Design Regulations prohibits making any amendment to an application that would substantially alter the design to which the application relates. Accordingly, it is not possible to amend a description to change what is identified as the design. For example, where a description initially indicates that the design relates to the appearance of a particular portion of the article, it is not possible to amend the description to indicate that the design relates to the appearance of a different portion of the article or that it relates to the appearance of the entirety of the article.

Similarly, where a description initially indicates that the design relates to the appearance of the entirety of the article, it is not possible to amend the description to indicate that the design relates to the appearance of only a portion of the article. It should be noted, however, that the description may be amended at any time before registration to add or delete statements identifying or describing significant features of the design. For example, if the description initially reads: "The design consists of the features of ornament of the handle of the spoon shown in the drawings", it would be acceptable to amend the description to read: "The design consists of the features of ornament of the handle of the spoon shown in the drawings. The most significant feature of the design is the appearance of the rose at the base of the handle."

Although descriptions may not be amended to change what is identified as the design, any design disclosed in the application as initially filed may be made the subject of a divisional application if the divisional is filed before the registration of a design based on the original application. A design is considered to be disclosed in the original application if it is shown in the drawings or photographs as initially filed regardless of whether that design is shown in continuous or stippled lines and regardless of whether that design is identified by the description as being the design to which the original application relates.

ANNEX

Recommended Guidelines for Optional Detail in the Description

1. Because design protection relates only to the appearance of an article, it is recommended that the applicant not make reference to features relating to function, construction principles, materials used, or size. Words or phrases like: used to, acts as, rotates, swivels, the start square, to hold, closed by, to represent, etc., should be avoided insofar as they imply a "function". Words or phrases like: is attached by, joined with, laminated, formed by, connects with, etc., should be avoided insofar as they refer to how the article was made or "construction principles".
2. Parts of articles may be referred to by their common or generic name; however, it is recommended that their shapes also be described (e.g., rectangular zipper, round hole, square button, u-shaped handle, square lock, etc.).
3. Geometric terms such as circle, square, triangle, trapezoid, or parallelogram may be used where applicable. Accurate botanical, biological, architectural or engineering terms, or other suitable terminology that describes the features of the design may also be used.
4. Adjectives such as elongated, inclined, flat, planar, uniform, long, short, thick, or thin, which do not precisely describe the feature, are acceptable; however, it is recommended that each feature mentioned in a detailed description be accurately described using precise terms. Words such as cross, star, leaf, person, animal and many other collective nouns are generally not recommended because they could describe many different shapes.
5. When an applicant describes design features that constitute a pattern, it is recommended that the shape of the elements of the pattern be described (e.g., alternating straight lines of squares and circles).
6. The applicant may choose to describe a shape by modifying a simple form as, for example, "generally rectangular with a triangular notch in the upper side, an inwardly curved opposite side, and rounded corners".
7. The applicant may choose to describe human and animal forms that are dominant parts of a design by their position, e.g., "the profile of a moose with its head turned" or "the profile of a woman with long braids holding a writing instrument".
8. The applicant may indicate that a feature has the shape of a letter (e.g., "u-shaped").
9. The method of describing letters is generally dependent upon the importance of the lettering to the design and upon the quantity of lettering involved.
   
   
1. If the letter is very dominant, it is recommended that geometric terms be used to describe each feature of each letter's shape.
2. If the letters are not important or there is a large number of letters on the design, it is recommended to simply indicate that certain letters appear at certain locations.
3. If there are a few important words or letters and their shape is part of the design, the applicant may wish to use printers' font names (e.g., Times Modern, Helvetica, Roman, etc.).

Comments

Any comments or questions regarding this notice may be addressed to:

Heather Coulter-Bowen
Chief, Industrial Design Examination
Copyright and Industrial Design Branch
Industry Canada
Place du Portage I
50 Victoria Street
Gatineau, Quebec  K1A 0C9

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