When should I apply for an industrial design registration?
One of the requirements for obtaining a valid design registration in Canada is that the design has to be novel. If the design has been publicly disclosed, it is no longer considered novel. Publication includes distributing samples or making public use of an article incorporating the design, selling or exhibiting such articles for sale, or publishing the design in advertising or other printed material of any sort. This includes disclosures by the author of the design.
Some countries have a grace period for filing applications even after a public disclosure. In Canada, an industrial design application must be filed no later than one year after the earliest date of public disclosure of the design. The United States and Europe have a similar one-year grace period for public disclosures, but many other jurisdictions have no grace period whatsoever. In countries with no grace period, any public disclosure of the design by any person before filing a design application destroys novelty. In such countries, once the design has been publicly disclosed, you can no longer obtain a valid design registration.
There may be situations in which you must discuss your design with someone else before filing a design application. For example, you may need to employ a manufacturer to produce a prototype of a product. To avoid having such disclosures be considered a public disclosure that could destroy your design rights, it is important to have a non-disclosure agreement (“NDA”) in place.