Innovators and inventors use these documents every day to protect their ideas and interests.
Step 1
Non-Disclosure Agreement
A Non-Disclosure Agreement is a contract used to maintain privacy in agreements where sensitive information is exchanged between two parties.
Step 2
Confidentiality Agreement
A Confidentiality Agreement is used to protect sensitive information shared between two parties by prohibiting the disclosure of this information to a...
Step 3
Cease & Desist Letter
A Cease and Desist Letter is used to order another individual or company to stop an action or behavior, such as copyright violation or debt collection...
Last updated May 10, 2023
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Much like material possessions, intangible assets can have value. One category of such assets is intellectual property. Intellectual property refers to creations of the mind and includes ideas, inventions, and designs. If you have a valuable creation, you must take steps to discourage others from stealing or misusing it.
This article will define intellectual property and discuss its various types, including copyrights, trademarks, patents, industrial designs, and trade secrets. We will explain how to protect your intellectual property, discourage others from stealing your work, what to do if someone infringes upon your rights, and much more.
Intellectual property (IP) refers to intangible assets people create using their minds. Intellectual assets include literary works, company brands, innovative technology, visual vehicle designs, software, and so much more.
Due to domestic legislation and international treaties, Canadians have the exclusive right to their intellectual assets. Like tangible property, intellectual property has financial value and can be profitable for owners.
However, intellectual property rights are more difficult to protect than personal property rights. When you own books, you protect them from theft by keeping them in your home. If you own the copyright to a book, people around the world have access to your work and protecting your ownership becomes a much more complex matter. Therefore, you must know how you can safeguard your intellectual assets.
To best protect your intellectual assets, you first need to understand which intellectual property rights apply. You can determine which steps to take to ensure someone does not infringe on your property rights.
According to the Canadian Intellectual Property Office (CIPO), there are five primary types of intellectual property rights:
Copyright is the sole right to produce and copy an original literary, artistic, dramatic, or musical work. The concept of copyright was developed to protect creators and ensure that they could profit from their work. Without copyright, there would be no law preventing people from profiting from others’ creations.
Creators have copyright immediately after establishing their work in a tangible form, but they may also register their copyright.
When you own the copyright to a piece of work, you have the right to produce, reproduce, modify, distribute, and publicly perform or display your work. You also have the right to sell or license your copyrighted work for exclusive or limited use.
Many different types of creative works can be protected by copyright, including:
Copyright doesn't cover ideas themselves, procedures, methods of operation, or mathematical concepts.
In Canada, copyright is governed by the Copyright Act, which prohibits unauthorized parties from using or copying your work. If you have met the conditions of the Copyright Act, your work is automatically protected. Ultimately, the purpose of this legislation, and all other intellectual property laws, is to protect the interests of copyright owners and encourage creativity.
Besides Canadian copyright laws and protection, Canadians are subject to some international treaties. For example, Canada is subject to the Berne Convention, which mandates that copyright existing in one country is valid in all countries signed to the agreement. Currently, 179 countries around the world are signatories to the agreement. In addition, Canadians must follow the rules put forward by the World Intellectual Property Organization (WIPO).
In Canada, you automatically hold the copyright to your work. However, you can still register your copyright to provide evidence of your ownership. A certificate of registration from the Canadian Intellectual Property Office (CIPO) proves that you are the registered owner of the copyright to the work in question. Keep in mind that despite registering copyrighted work with CIPO, the office is not responsible for monitoring unauthorized use of your work.
Tip: To show that a work is copyrighted, put a copyright notice on the work that includes the copyright symbol, the original publication date, and the owner’s name (e.g., © 2022 LawDepot).
Copyright in Canada lasts for the creator's life, plus the remainder of the calendar year in which they pass away, plus 50 years after the end of that calendar year. Therefore, copyright protection ends for multiple works every December 31st.
There are some exceptions to the rules surrounding the length of copyright when it comes to jointly-authored works, works with unknown authors, posthumous works, performances, sound recordings, and communication signals.
Copyright infringement is the use, production, or reproduction of a copyrighted creation without the copyright owner's authorization.
For example, if someone starts printing and selling copies of an author’s novel, they infringe on the author’s copyright. Another typical example is the unauthorized use of copyright-protected music. If a production studio wants to use a musical artist’s song recording in a film, they need permission or a license from the artist.
If someone infringes on your copyrighted work, you can send them a Cease and Desist Letter. If they do not comply, you can take legal action against them.
A trademark is a word, phrase, symbol, or distinguishing quality that is used to identify the brand of a company, individual, or organization. Identifying your brand helps consumers distinguish you or your company from your competition.
Having an easily identifiable brand means your consumers can build a relationship with you or your company. The value of your trademark grows with the success of your company.
Many different things have the potential to be trademarked once they are sufficiently distinctive, including:
In Canada, trademarks are governed by the Trademarks Act, which ensures that you have the exclusive right to use your trademark throughout Canada when properly registered with the CIPO. The Trademarks Act dictates that a trademark owner gains the exclusive right on a “first to use” basis.However, trademarks are not always registered. Luckily, trademark protection exists under Canadian common law, not just the Trademarks Act. Therefore, if you do not register a trademark, such as your company’s operating name, and someone starts using it, you may still be able to take legal action against them.Besides Canadian trademark law, Canada has also consented to some international agreements. On June 17, 2019, the Madrid Protocol, the Singapore Treaty, and the Nice Agreement came into force in Canada. These agreements make trademark protection more consistent around the world.
To register a trademark in Canada, work your way through the following steps:
In Canada, a registered trademark is valid for ten years. Registered trademarks are marked with the registered trademark symbol (®). You can renew your trademark every ten years. The benefit of registering your trademark is that it provides your business with the exclusive right to use that trademark (or ™) throughout Canada in association with the registered product or service.
Trademark infringement is the use of a trademark without the owner’s authorization. For example, producing, importing, or selling "knock-offs” of a specific fashion brand without permission is trademark infringement.According to the CIPO, trademark infringement can also occur if an unauthorized party is using a confusingly similar trademark. For example, suppose a new coffee shop started operating under the name “Tom Hortons” to capitalize on the popularity of Tim Hortons Restaurants. In that case, the coffee shop would likely be accused of committing trademark infringement contrary to the Trademarks Act. This infringement is also known as ‘passing off,’ which is the civil wrong of deceptively representing your product as the product of a more well-known brand and thereby unfairly profiting from the goodwill of that business.If someone infringes on your trademark rights, you can send them a Cease and Desist Letter. If they do not comply, you can take legal action against them. If the property you are seeking to protect falls within the definition of trademark (whether registered or unregistered) you would have a statutory cause of action under the Trademarks Act. Otherwise, you might still have a cause of action at common law.
A patent is a type of intellectual property protection that gives an inventor exclusive rights to their invention. Unlike copyright, which is automatic, patents must be applied for by the creator and certain requirements must be met.
The purpose of patent law is to protect inventors and innovators. Patent law ensures that people can benefit from their creations without another party stealing their ideas. The ensured benefit encourages competition and innovation in many industries.
Patents are essential components of certain industries, such as the pharmaceutical industry, where a new product must undergo years of research and development followed by regulatory approval before it can start to provide a return on its investment. Patents enable that process by ensuring no unauthorized parties may profit from all that work, and thus can be very valuable.
You can obtain a patent for the following types of intellectual property:
For a patent to be granted, an invention, design, process, or improvement must be new, inventive, and useful. Things like concepts, discoveries, scientific theories or principles, and medical treatments cannot be patented.
In Canada, patents are governed by the Patent Act. The act ensures that when a creator obtains a patent, they have the exclusive right to their patent for a set time. Because the application process can take an extended amount of time, the first applicant to file a patent application for an invention is the one entitled to obtain exclusive rights for that invention.
In 1923, Canada consented to The Paris Convention for the Protection of Industrial Property (Paris Convention). This was the first major step in helping inventors protect their inventions in other countries. In addition, Canada consented to The Patent Cooperation Treaty (PCT), which allows people to seek protection for inventions in multiple countries all at once by filing one international patent application.
Once you know what types of things can and cannot be patented, you can begin the process of acquiring a patent. To apply for a patent in Canada, follow these steps:
According to the blog for Osgoode Hall Law School’s Intellectual Property Law & Technology Program, the average cost of a patent can vary from $10,000 to $20,000 in Canada. For more information, the Canadian Intellectual Property Office also provides a full breakdown of the fees associated with patents.
In Canada, a patent lasts for 20 years following the filing date. Afterwards, other parties can freely use the patented invention, design, process, or improvement.
Rewarding inventors for their innovations is essential, but it is also important to encourage societal innovation and market competition. If a patent is in effect for too long, one creator may have a monopoly in a particular area or industry which harms consumers. Furthermore, if patents last too long, other inventors may be held back from inventing further innovations.
Patent infringement is when someone creates, uses, or sells patented intellectual property without the patent holder's permission or license. CIPO is not responsible for enforcing someone’s patent rights. When an unauthorized party infringes on someone’s patent, the patent owner has to take action. Alternatively, an exclusive or non-exclusive licensee can also take action against the unauthorized party.
Sometimes, a patent owner can easily rectify patent infringement by sending the unauthorized party a Cease and Desist Letter, pointing out the existence of the patent and demanding they stop their behaviour immediately. If they continue their behaviour, or if their actions have already caused the patent owner too much harm, legal action would be the next step.
To make a legal claim that someone has infringed on your patent rights, you first need a granted patent. In addition, you need evidence that the unauthorized party has either directly infringed the patent or induced another to infringe the patent.
If you discuss your invention with someone, such as a potential collaborator or investor, but have not secured a patent yet, use a Non-Disclosure Agreement (NDA) or Confidentiality Agreement to protect your idea. An NDA contractually binds the other party not to share or misuse the confidential information.
Regarding intellectual property, an industrial design refers to a product's unique, visual, or aesthetic features that are original and identifiable. The product’s unique appearance creates public familiarity with a brand or business, giving the owner a competitive advantage. Industrial designs have to be registered.
Examples of industrial designs include:
Industrial designs do not include functional innovations or constructive processes. Depending on the creation, industrial designs may also be patented or protected by copyright. Like other forms of IP, you can sell or license your industrial design rights.
In Canada, creators’ industrial design rights are governed by the Industrial Design Act. This act dictates that only a product’s appearance can be protected as an industrial design—not its construction, components, or functionality. According to CIPO, this act ensures that creators have the exclusive right to the following features of their products:
Besides the Industrial Design Act, Canada has also consented to an international agreement. On November 5, 2018, Canada joined the Hague Agreement which allows applicants to protect their designs in multiple countries by only filing a single application with the International Bureau of WIPO.
To protect your industrial designs and ensure your exclusive rights, register your design. You have the following options for registering your industrial design:
To register an industrial design, it must be original and unique. It cannot look like or be too similar to another party’s design.
If you have never published your industrial design, there is no timeframe in which you must apply for registration with CIPO. In contrast, if you have already published your industrial design and it is public, you must file your application within twelve months of publication. Failing to file an application could mean that you lose your exclusive rights.
When you register your industrial design with CIPO, you gain exclusive, legally enforceable rights in Canada for ten years from the date of registration or 15 years from the filing date of the application, whichever is longer.
Registering with the Hague System may provide a different length of protection. According to WIPO, the Hague System provides you with five years of protection. You can renew your design twice, which means you can have at least 15 years of protection under the Hague System.
When someone uses your industrial design or elements of your industrial design for their product without your authorization, they have committed industrial design infringement. Generally, infringing on an industrial design involves the unauthorized party using the protected design for their own profit.
Although you may register your design with CIPO, the office does regulate cases of infringement. As an intellectual property owner, you are responsible for ensuring that no one else is stealing or misusing your design.
If you encounter a situation where a party is infringing on your rights, start by sending them a Cease and Desist Letter. If they continue to infringe upon your rights or their actions have already caused you financial loss, you may file a legal claim against them. Note that under the Industrial Designs Act, the court will not grant a remedy for an act of infringement committed more than three years before the legal action began.
Suppose you have not published your industrial design, and you need to share it with a third party person, such as a potential collaborator or employee. In that case, you can use an NDA or Confidentiality Agreement to ensure your design stays private. A confidentiality clause within an Employment Agreement may suffice in cases involving employees.
A trade secret is a valuable piece of information that gives a company an advantage over competitors. The value of a trade secret comes from its secrecy. Typically, releasing a trade secret to the public or a competitor would be detrimental to a business. Like other types of IP, trade secrets can be sold and licensed.
A variety of information can be considered trade secrets, including:
For information to be considered a trade secret:
While a particular invention or innovation awaits patent approval, it would be considered a trade secret. The law regarding trade secrets can also offer protection in cases where no other IP rights apply, such as keeping a customer list private.
Any information that is known by the public cannot be considered a trade secret. In addition, information which is not considered public but is known by different manufacturers cannot be considered a trade secret because multiple parties know of it.
Unlike all other types of intellectual property, information cannot be registered as a trade secret.
To best protect a trade secret, you must keep it private and known to only the necessary people at your company. When discussing a trade secret with someone, have them sign a Non-Disclosure or Confidentiality Agreement first to ensure its secrecy.
Like with industrial designs, you may also use confidentiality clauses in Employment Contracts to protect trade secrets. For example, if you hire an employee who has access to valuable customer data, a confidentiality clause can discourage them from sharing the data once they depart your company.
If you have an invention that is a trade secret, you may have to eventually register it as a patent. In that case, it is a necessity to make the details of the invention public knowledge in exchange for the protection of patent law.
In Canada, there is no federal legislation governing trade secret protection. Instead, cases centred around trade secret disputes are resolved through common law in most of Canada. If a contracting party breaches an NDA and the case goes to court, lawyers will rely on case law to resolve the matter.
In Quebec, trade secret disputes are resolved through civil law.
Since there is no registration for trade secrets and the responsibility of secrecy falls completely on a company, trade secrets last as long as companies can keep them secret.
Whether you've branded your company, made a groundbreaking invention, or created a useful computer program, being proactive in protecting your creations will help you fully capitalize on your intellectual property.
If you're going to discuss your work with an external party, always utilize a Non-Disclosure Agreement or Confidentiality Agreement before sharing any confidential information.
Luckily, as seen with copyrights and trademarks, some IP protection is automatic. In other cases, such as patents, you have to register your creation to receive any kind of protection. It is never a bad idea to register your intellectual property with the appropriate organization for optimal protection.
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