k together with other person to creat a design, you should file for registration as joint proprietors ( unless you are all working under contract or commission );[3] if you have acquired ownership of a design, then you may apply;[4] if you are employee of a company and develop design as part of your employment, then the employer may be the proprietor. In that case, only the employer may apply in Canada; while in china, the entity and the inventor or creator may enter into a contract in which the right to apply for and own the exclusive right is provided for;[5] if you have been hired under contract to develop design for someone else, then that person is the proprietor and is the only one entitled to apply for registration in Canada; whereas in that case in China, the right to apply for registration belongs, unless otherwise agreed upon, to the entity or individual that made the design.
2.3 What requirements to make designs registerable?
In Canada, the minister shall register the design if the minister finds that it is not identical with or dose not so closely resemble any other design already registered as to be confounded therewith, and shall return to the proprietor thereof the drawing or photograph and description with the certificate required.
In China, any design for which patent fight may be granted must not be identical with and similar to any design which, before the date of falling has been publicly disclosed in publications in the country or abroad or has been publicly used in the country, and must not be in conflict with any prior right of any other person.
2.4 What you cannot register?
In Canada, you cannot register the following under the Industrial Design Act: [1] Designs that are utilitarian only and which are not intended to provide visual appeal; [2] Designs that have no fixed appearance; [3] Designs for components that are not clearly visible; [4] a method of construction; [5] an idea; [6] materials used in the construction of an article; [7] the useful function of the article; or [8] color.
In China, for any of the following, no patent right shall be granted: [1] scientific discoveries;[2] rules and methods for mental activities;[3] methods for diagnoses or for the treatment for the diseases;[4] animal and plant varieties;[5] substances obtained by means of nuclear transformation.
From the above regulations, we can see that the Chinese regulations is more generic for all of the three types of creation-inventions; and the Canadian’s is more special in detail on designs. So we should absorb some of them in our implementing regulations of patent law.
2.5 searching of office record prior to filing an application
Prior to filing an application, you may wish to conduct a search of office records in order to better determine whether your design is truly new and original. This will give you the opportunity to see other registered designs. You should also keep your design confidential.
2.6 How long the process takes?
In Canada, the Office dose not register any design until six months after the date of filing. Normally it takes between eight and twelve months to have your application examined. While in china, there is no such kind of provisions concerning the term of process of designs.
2.7 Duration of protection
Both in the two countries, duration of protection of industrial designs is for ten-year term, while the beginning date is quite different. In Canada, it is the date of registration-usually six months after the date of filing; in china, it is the date of filing. Once the ten-year term has expired, anyone is free to make, import, rent or sell etc., the designs.
2.8 Extension of protection
In Canada, your application must include a description which identifies the features that constitute the design since the court may use your description to help determine the limits of protection for your design, you should word your description with care and precision. If your description is too broad, you may over-extend the scope of the design, and it may be impossible to enforce. If it is too narrow, you may limit the scope of the design or leave out features that you intended to protect.
In China, the extend of protection of the patent right for design shall be determined by the product incorporating the patented design as shown in the drawings of the photographs.
2.9 Preparing your application
An application for registration of an industrial design has three basic elements as: [1] the application form;[2] at least one drawing or photograph of the design; and [3] the required fee(s). The application must include a title that identifies the finished article to which the design is applied. It should be the common name used in the trade. The description, along with drawings and title, must provide an actual picture of the design.
Only for Canada, each industrial design application must be limited to a single design or to “variants”. Variants are designs which do not differ substantially from one another. You may add variants of the design to your application anytime before registration.
2.10 Fees
In Canada, you must pay a fee to make your application examined by the Industrial Design Office. There additional fees for maintenance and late payment of the maintenance fee of designs. Before the expiry of five-years from the date of registration, a maintenance fee must be paid or the protection will cease.
In china, you shall an annual fee beginning with the year in which the exclusive right of design was granted. Failing to pay the annual fee will result in ceasing of protection before the expiration of its duration. The maintenance fee just exists in field of applying for a patent for invention. That is where the applicant for a patent for invention had not been granted a patent right within two years from the date of filing; the applic

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