Introduction
China continues to play a central role in international commerce, and for foreign businesses operating or entering the Chinese market, intellectual property (IP) protection is a critical concern. Despite legislative reforms in recent years, enforcement on the ground can be complex, and proactive rights management remains essential.
This article outlines the main areas of IP protection in China and offers practical guidance to foreign businesses seeking to secure and enforce their rights effectively.
Understanding the IP Landscape in China
Trademarks
China follows a first-to-file system, which means that the first party to register a trademark—regardless of prior use elsewhere—will generally be granted exclusive rights. Foreign companies are therefore strongly advised to register their trademarks in China before entering the market, even if they have existing registrations in the EU or other jurisdictions.
Searches should be carried out through the China National Intellectual Property Administration (CNIPA) database before filing. Trademark "squatting" remains an issue, and although bad-faith registrations can be challenged, the process is time-consuming and uncertain.
Patents and Designs
Patent protection in China covers inventions, utility models, and industrial designs. Foreign applicants can file directly with CNIPA or enter via the Patent Cooperation Treaty (PCT). Utility model protection in China is particularly relevant for mechanical devices and can offer faster registration than full invention patents.
Importantly, patent filings must be made before public disclosure, and applicants should not rely on protections from other jurisdictions unless the proper filing procedures are followed in China.
Copyright and Trade Secrets
Copyright arises automatically under Chinese law upon creation of a work. However, voluntary registration with the China Copyright Protection Center can be advantageous in enforcement actions, as it provides clear evidentiary support.
Trade secrets are protected under the Anti-Unfair Competition Law, but legal remedies depend heavily on the existence of appropriate internal safeguards. Businesses should ensure they have strong contractual protections and access controls in place, particularly when engaging with local employees, partners, or manufacturers.
Enforcement Mechanisms
Infringement can be addressed through both administrative and judicial channels. Local enforcement bodies may seize infringing goods or impose fines, while the courts—particularly the specialised IP tribunals in cities like Beijing and Shanghai—can issue injunctions and award damages.
That said, litigation in China remains procedurally demanding, and success often hinges on careful preparation, strong local representation, and robust evidence gathering.
Customs Measures
Chinese customs authorities provide an effective mechanism for preventing the import or export of infringing goods. Right-holders can record their registered IP with customs, enabling border officials to detain suspected counterfeit shipments. This tool is especially useful for rights-holders facing large-scale counterfeiting aimed at overseas markets.
Practical Considerations for Foreign Rights-Holders
Foreign businesses are advised to:
- File for IP protection early, ideally before entering the Chinese market;
- Monitor the market actively for infringement, including online platforms and e-commerce sites;
- Maintain detailed documentation of brand use, manufacturing, and distribution to support enforcement;
- Implement internal compliance protocols and confidentiality agreements for employees and local partners;
- Engage legal support familiar with the local legal environment and administrative procedures.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
