Protecting your IP in China

Register the mark in China before you show your product to anyone there — before the first quotation request, ideally, because that is the moment it stops being private. The cost of filing is small and known in advance; the cost of buying a mark back from somebody who filed it, or of litigating it, is neither.

File the Chinese-character version too, and choose it deliberately. Your brand will acquire a Chinese name whether or not you pick one — customers, distributors and factories will coin one — and a name coined by the market can be registered by anybody. Choosing your own transliteration and registering it is far cheaper than reclaiming one you did not choose.

Cover the goods you actually sell and the ones adjacent to them. Rights are granted for specified classes of goods and services, and a mark registered for one category does not automatically cover a related one. Getting the scope right is a job for somebody who does it professionally in China; the point here is only that "we registered the trade mark" is not a complete sentence until you know what it covers.

The Madrid route — extending an existing international registration to China — is available and can be efficient, but it is not automatic: a request for territorial extension is examined by the Trademark Office, and any party may file an opposition within three months of the international mark being published. It is a filing that can be refused or opposed, not a formality, and it should be planned with the same lead time as any other.

No fees or timescales are published here. They change, they are per-case, and a figure in a guide would be quoted back at somebody long after it stopped being true.

Almost always three things at once, and all three were decided before production started. The design was disclosed during quotation, to several factories, with nothing in place. No registered right existed in China, so there was nothing to enforce there. And the contract, if there was one, was a document a Chinese court would struggle to act on.

Start with disclosure, because it is the one nobody counts as a decision. Sending a 3D file, a detailed drawing or a physical sample to five factories to get comparative quotes is a disclosure to five companies, each with their own staff, their own suppliers and their own other customers. That is not an accusation of bad faith; it is arithmetic about how many people now have the file.

And in a first-to-file system, disclosure without a filing is worse than it looks: it starts a clock in which somebody else can be the first to file the thing you showed them. The fix is order of operations, and it is free — file first, then disclose.

Then be honest about what is actually distinctive. A great deal of what buyers describe as "our design" is a standard housing from a design house with a different colour and a logo, and no right attaches to it because nothing about it is new. Knowing which parts of your product are genuinely yours — a mechanism, a specific arrangement, artwork, a name — tells you what is worth protecting and stops you paying to protect what is not.

Where the shape or appearance IS genuinely yours, a registered design right in China is the instrument that matches it. It is the most commonly skipped protection among small importers and the one most directly aimed at "somebody is selling a copy of our product".

A registered trade mark protects the NAME and the logo — what customers use to identify you. It is the one to file first because it is the one a squatter can most easily take, and because it is what stops somebody else selling their goods as yours.

A registered design right protects the APPEARANCE — the shape, the pattern, the arrangement, insofar as it is new. For a physical consumer product this is usually the instrument that matches the thing a buyer is actually afraid of losing, and it is routinely overlooked in favour of the trade mark.

Copyright protects original creative works — artwork, packaging graphics, illustrations, manuals, software. It generally arises without registration, but registering it in China gives you something a Chinese official or platform can be shown quickly, which is the practical difference between a right you have and a right you can use.

A patent protects a technical invention. It is slower and more expensive than the others and it requires the invention to be genuinely new and non-obvious — so it is the right instrument for a real technical advance and the wrong one for a repackaged commodity.

And underneath all four, the contract, which is the only instrument that binds the specific factory in front of you. The four registered rights and the contract do different jobs: the rights work against the world and take time to obtain, and the contract works against one party and can be signed this week. Neither substitutes for the other, and buyers who have one usually believe they have both.

China also operates a customs recordation system through which registered rights holders can ask customs to act at the border. Whether and how it applies to any particular situation is a question for a Chinese practitioner and is not settled in a guide — the reason it appears here at all is that recording a right is a step people do not know exists.

A standard Western non-disclosure agreement is written for a world in which the risk is your counterparty TELLING somebody. In manufacturing the risk is different and larger: the factory using your design itself, or selling to your customers directly. A pure non-disclosure agreement addresses neither, and a factory can comply with it perfectly while doing exactly the thing you were afraid of.

The document that matches the risk covers three things rather than one: not disclosing, not USING the design for anyone else including themselves, and not going around you to your customers. Ask a China-qualified lawyer for that document by describing those three obligations rather than by asking for "an NDA" — the request is what determines what you get.

Then the part that decides whether any of it matters: which law governs it, which forum hears a dispute, and in what language. An agreement in English, under a foreign law, with disputes to be heard abroad, is a document your supplier can read and safely ignore — because enforcing it means winning abroad and then trying to have that judgment recognised in China, which is slow, uncertain and often not worth attempting. A contract intended to be used against a Chinese company generally needs to be enforceable against it where its assets are.

Include a defined consequence rather than a promise to compensate for proven loss. Proving loss caused by a leaked design is close to impossible; a pre-agreed sum that a court can simply award is the difference between a clause that deters and a clause that comforts.

No draft wording is published here, and the reason is that a clause in a guide gets used unedited by somebody whose situation it does not fit — which is worse than having no clause, because it produces confidence without protection. What this page can give you is the checklist to arrive with: file first, disclose second; register the mark in Latin and Chinese characters; register the design if the appearance is yours; and have the contract written to be enforced where the factory is.