As mentioned in our previous post, industrial
designs protect the visual features of a product (shape,
configuration, pattern or ornament). Functional, utilitarian or
useful elements are not eligible for protection. This was
illustrated in Bodum USA, Inc. v. Trudeau Corporation, 2012 FC
1128 (CanLII), where the court found that Bodum's double-walled
drinking glass design was not infringed, since the competing
product was not substantially similar in light of the many
variations of double-walled glasses in the marketplace. The designs
would have had to be virtually identical to support a finding of
infringement.
A second interesting element to this case is the counterclaim by
Trudeau Corp., who sued for a declaration that the Bodum design was
invalid due to the prior art on the register. The court in
Bodum confirmed that to be registrable, an industrial
design must be substantially different from prior art. A simple
variation is not enough. For a design to be
