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Collaborating in China
Before you start manufacturing or collaborating with a Chinese firm, you can take steps to protect your IP from infringement.
The key ways to protect your IP rights in China are to:
- Develop an IP strategy early
- Familiarise yourself with the Chinese IP system
- Use strong contracts designed for China
- Actively monitor for infringement and enforce your rights
- Seek experienced legal advice.
Develop an IP strategy early
You should develop a plan for managing your IP before taking your idea or invention to market.
Until you have a clear IP strategy in China, take care before:
- Approaching anyone in China about manufacturing products
- Exhibiting your wares at international trade fairs
- Offering goods for sale in China
- Reaching out to local assistance for distribution or business advice.
Note that mainland China, Hong Kong, Macau and Taiwan all have separate IP systems, so you'll need to consider each of these markets separately.
Get familiar with the Chinese IP system
China's IP system is complex, so it's a good idea to get an understanding of the basics before you apply.
- In China, the owner of a brand is the person who owns the earliest relevant trade mark registration. It's not the person who first develops or uses the brand. It could be time-consuming and expensive to get your trade mark back if it's already been registered by someone else.
- Be cautious of distributors or business associates who offer to make trade mark registrations on your behalf — you could lose control of your IP. We encourage you to manage the process yourself with help from a legal professional with expertise in Chinese trade marks.
- You should consider registering both your English and Chinese trade marks, as well as any logos. Chinese consumers often prefer to use a Chinese language brand, which could be a phonetic transliteration of your English brand or a translation of the meaning of your English brand. Branding consultants and some Chinese trade mark agents can help you develop an appealing Chinese language brand.
- Like Australia, China divides trade marks goods and services into 45 classes, which are then divided into subclasses. A registration in one subclass usually won't prevent someone else registering your trade mark in a different subclass.
- A legal professional with expertise in Chinese trade marks can help ensure that the list of goods and services on your trade mark application covers the required classes and subclasses.
Further resources
For information on China's trade mark system, visit the China National Intellectual Property Administration (CNIPA).
- In China, patents are known as invention patents.
- A patent won't be granted in China if your invention has already been revealed to the public, anywhere in the world, before you apply.
- Any sales or advertising related to your patent, even publication of an Australian patent application, will prevent you from securing protection in China. In rare cases, you might be able to obtain an exception if you apply within six months of the original disclosure.
Further resources
For information on China's patent system, visit the China National Intellectual Property Administration (CNIPA).
- In China, design rights are known as design patents.
- If your design has been revealed to the public anywhere in the world, before you apply, including through sales, advertising or publication of an Australian design application, registration isn't permitted in China. In rare cases, you might be able to obtain an exception if you apply within six months of the original disclosure.
Further resources
For information on China's design system, visit the China National Intellectual Property Administration (CNIPA).
- Similar to to Australia, you can only register new or recently exploited plant varieties in China.
- You have a grace period of 12 months after first selling or advertising a variety in China before it isn't considered new or recently exploited and therefore isn't eligible for IP rights.
- You have a grace period of four years for a variety sold or popularised outside of China (or six years for vines, forest trees, fruit trees and ornamental trees). After this period expires, you'll be unable to obtain a PBR in China.
Further resources
For a list of plant species protected by China and updated by the UPOV office annually, visit UPOV's Genie database.
For information on China's plant breeder's right system, visit the Ministry of Agriculture and Rural Affairs.
Use a contract specific to the Chinese market
A contract clearly sets out the terms of your agreement and enables you to take legal action in China. It needs to be specifically designed for China and comply with Chinese law.
Monitor for infringement
To protect your IP in China, you'll need to monitor different markets for infringement, both online and offline. You'll also need to gather evidence of infringement so you can take enforcement actions.
Enforce your IP
Once you’ve registered your IP rights in China and protected your IP using strong contracts, you'll be well positioned to enforce your rights in China. If you find that someone has infringed on your IP, there are several enforcement options available.
Contact our team in China
Our Beijing-based counsellor provides IP guidance and support for Australian businesses on how to navigate the Chinese IP and legal systems. For more information or to discuss your specific situation, reach out on ChinaIP@ipaustralia.gov.au.
Getting IP rights in China is a complex process. You should consider engaging a legal professional with expertise in Chinese law to assist you.
Your Australian legal counsel can work with Chinese lawyers, or you can work directly with a Chinese or international firm.
