Protect Your IP

How to Protect your IP?

In order to protect your intellectual property, it is first necessary to understand what intellectual property is in Canada. This article aims to explain the general concepts of intellectual property and the main categories of intellectual property in Canada.

What is Intellectual Property?

Intellectual property or "IP" is a type of property that stems from intangibles. To understand intellectual property, it is best to understand other types of property. The two main categories of property are as follows:

Real Property

For all intents and purposes, real property is land and anything affixed or forming part of the land. An example of real property is a home.

Personal Property

Personal property includes property other than real property that is tangible or intangible. Examples of personal property include a car or a trademark (a type of intellectual property). Intellectual property is a type of intangible personal property that stems from intellect.

Can IP Be Protected in Canada?

The following categories represent some of the main types of intellectual property that can be protected in Canada.

Copyrights

Copyright is a term used to refer to the rights granted to a copyright owner and author in relation to certain types of works, including, but not limited to, artistic works, dramatic works, literary works, and musical works. Examples of works that are protected under copyright laws are art, music, literature, and software.

Generally, the Copyright Act grants an owner or author many rights, including the right to produce or reproduce a work.

Industrial Designs

An industrial design means features of shape, configuration, pattern or ornament and any combination of those features that, in a finished article, appeal to and are judged solely by the eye.

An industrial design registration can be granted by the Canadian government to provide a monopoly over the exclusive rights granted under the Industrial Design Act.

An industrial design is registrable if, amongst other indicia, it does not consist only of features that are dictated solely by a utilitarian function of the finished article.

Examples of industrial designs include mobile phone designs, a unique design feature on a car, and the shape of a unique pair of shoes. As mentioned above, an industrial design is in regard to a product’s appearance and not its functionality.

Patents

A patent is a monopoly that can be granted by the Canadian government to exclude others from making, constructing, using or selling a patented invention.

An "invention" is defined as any new and useful art, process, machine, manufacture or composition of matter, or any new and useful improvement in any art, process, machine, manufacture or composition of matter.

Trademarks

As discussed in What is a Trademark, a trademark is a sign or combination of signs that is used or proposed to be used by a person for the purpose of distinguishing or so as to distinguish their goods or services from those of others. In short, a trademark refers to a mark that distinguishes an trader's goods or services from those of others.

A registered trademark is a monopoly granted by the Canadian government to a registered trademark owner in regard to the exclusive right to use that trademark in Canada.

Trade Secrets

In Canada, there is no trade secret registration or formal protection process. However, trade secrets have been generally recognized by the Supreme Court and may have the following four characteristics:

1. The information must be secret in an absolute or relative sense (is known by one or a relatively small number of persons);
2. The possessor of the information must demonstrate that he has acted with the intention to treat the information as secret;
3. The information must be capable of industrial or commercial application; and
4. The possessor must have an interest (for example, an economic interest) worthy of legal protection.

(Merck Frosst Canada Ltd. v. Canada (Health) 2012 SCC 3)

How to Protect IP in Canada?

Protecting your intellectual property can be a complex process requiring an analysis of your specific business and associated intellectual property. Generally, protecting your IP is of value to a business, since it could be viewed as a valuable asset, as well as it can act as a risk mitigation tool that deters or prevents others from misappropriating your intellectual property.

Intellectual property protection can occur a number of ways, all of which are not mutually exclusive, including through formal registration (i.e., in the case of a registered trademark), as well as contractual methods to prevent disclosure or certain uses of your intellectual property. 

It is important to speak to your intellectual property and corporate lawyer to assist with identifying your intellectual property, identifying an IP protection strategy, and taking steps to protect your IP.

Disclaimer: All materials contained on this website should not be construed or relied upon as legal advice. The content of the SLC Law website is provided to you for informational purposes only and should not be construed as legal or other advice on any subject matter. Contact a lawyer or other professional for advice regarding your particular circumstances.