IP Protection in 2024 – Any change?

For many companies deciding to expand their activity in China, protecting their Intellectual Property Rights is one of the first and major challenges.

But be reassured that China has made much progress in IP protection since its opening in the early 80s; if you come up with a solid case, the legal system will enforce the protection of your rights!

It is important to remember that any company doing business in or with China must protect its IP. The rule is quite simple in China as it is a “first-to-file trademark system”.

The Chinese IP system does not consider how long you have been using this trademark or patent in foreign countries, but IF you have registered it in China.

It is commonly agreed in China that they are four ways to protect your IP in China:

1.?? Register your IP in China (trademark, copyright, and/or patent)

2.?? Organize your protection around the Chinese system

3.?? Be on the offensive to protect your IP

4.?? Involve China Customs

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1/ Register your IP in China

Whatever your relationship with China (selling in China, manufacturing in China, or importing from China), it is a priority for you to register your trademark and/or patents. This is the only legal mean to prove that you own your IP and that any third parties cannot claim property of it.

Registering a trademark is overall quite easy and cheap, but it may take up to 12 months to achieve the whole process (formal examination, substantive examination, and preliminary examination & announcements).

For patents, processes are more or less similar to what is being done in the European Union, but China has developed a new kind of process for “design patents” that give you quick protection.?

Despite the Berne Convention, it is also recommended to fill your copyrights in China to avoid any complications or delays.

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2/ Organizing your protection around the Chinese system

As many foreign companies fail to understand the Chinese legal system, they tend to use foreign templates (e.g. NDA) to protect themselves: documents in English, mentioning that foreign courts will be involved in case of a conflict, etc.?

To protect your IP that you have registered in China, you need the full support of the Chinese legal system to enforce it. This is why, it is more and more recommended to sign NNN Agreements in China and Chinese: Non-Disclosure/Non-Use/Non-Circumvention agreements.

NNN Agreements are way more thorough and are giving you more protection in China.?

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3/ Be on the offensive in China

Now that you are protected, do not hesitate to fight back! It is quite easy now to identify infringements. All serious Chinese online platforms propose a service where you can claim your rights and force the platform to take down online shops that are violating them within one to two weeks. This is the same for factories or offline shops that you can easily prosecute since the creation of the first Intellectual Property Courts in 2014.

4/ Involve China Customs

Finally, be aware that you can also register your IP with China Customs. This can help you to stop counterfeit products at the border before they could leave the country and challenge you on your traditional markets.?

On a final note, much progress has been observed since the beginning of 2023. While maintaining the principle of territoriality in IP Protection, the new amendments to the China trademark law are targeting to improve the use and protection of trademarks and extend it to e-commerce and the internet. A reform demanded by multiple foreign and Chinese companies facing unfair competition on local e-commerce platforms.

The new amendments want to limit repeated applications, and the number of trademarks owned per owner, and reinforce the fight against “bad faith” applications.

For companies, it also means they have now the obligation to prove the need to use it for their activity.