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In order to successfully register a design, the applied for design must be original. Originality is not limited to Canada and is universal. An individual cannot copy a design which has been published outside Canada and then attempt to register it on the basis that it is original in Canada.
The courts have said that use of the word "original" suggests the exercise of intellectual activity to originate, for the first time, something by applying a pattern, shape or ornament to subject-matter to which it had not been applied before. The design is the focus of consideration not the article to which it is applied.
To be original there must be a substantial difference between the design in issue and pre-existing designs. A minor change or other insubstantial variation from pre-existing designs will not be sufficiently original to allow a registration to be obtained. Originality requires at least a spark of inspiration on the part of the designer to create a new design or a new application of an old design.
The primary consideration in determining whether a design is original is appeal to the eye. However, the eye should be that of an informed consumer who is aware of what was common to the trade for the class of articles to which the design is applied.
The application of an old shape or pattern to a new subject matter may be original. It is also possible to take old designs and combine them to form a new design for which a valid registration may be obtained so long as the combination results in an original design which is substantially different from any of the old designs or any known combination of them.
Originality is assessed as of the date of the creation of the design not the date of its registration. Prior publications including patent specifications may be referred to. However, such prior documents must contain clear and unmistakable directions to make the article in the shape of the industrial design, in order to invalidate it.
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