Intellectual property protection in China: an overview

Canadian companies should develop and implement a comprehensive strategy for protecting and enforcing their Intellectual Property (IP) when doing business in China. 

Registering your IP in Canada does not automatically give you IP rights in China. Also, while there are some similarities, the IP registration and protection systems in Canada and China are not the same. It’s important to be familiar with the Chinese IP system.  

Over the past few decades, China has:

• modernized most of its IP laws and regulations
• joined most major international IP-related agreements
• established specialized IP courts
• streamlined legal processes to better align with international standards

Core IP-related laws in China include:

• Patent law
• Trademark law
• Copyright law
• Anti-Unfair Competition law
• numerous accompanying regulations and guidance documents

These laws and regulations protect patents, designs, trademarks, copyrights and trade secrets. China also has specialized laws and regulations that provide specific protection to geographical indications, plant variety rights, and layout designs of integrated circuits. 

To register IP in China, a company must submit applications to the appropriate agency or via the relevant international system.

• Trademark: Trademarks are registered through the China National Intellectual Property Administration (CNIPA). This can be done in two ways: 
  • Directly, which generally involves checking the availability of the trademark, preparing the necessary documents, and submitting and paying for the application.
  • Through what is known as the “Madrid  System”, which allows for the filing of trademarks in multiple countries through a single application filed with the World Intellectual Property Organization (WIPO).     
• Patent: You can apply for patent either directly to CNIPA or through the Patent Cooperation Treaty (PCT) system. The PCT system allows you to apply for patent protection in multiple countries simultaneously through a single international application. The application should include detailed documentation such as the request, claims, descriptions, and any necessary drawings. There are three types of patents in China:
  • Invention Patent: Protects new technical solutions or improvements related to a product, process, or method.
  • Utility Model Patent: Covers new technical solutions related to the shape, structure, or combination thereof of a product that are fit for practical use.
  • Design Patent: Protects new designs of the shape, pattern, or combination thereof, as well as the color, shape, and pattern of a product, which create an aesthetic feeling and are fit for industrial applications.
• Copyright: The National Copyright Administration of China (NCAC) manages copyright registration in China. Unlike other types of IP protection, copyright protection is automatic upon creation of a work, no matter where in the world that takes place. However, registering your copyright in China provides formal legal evidence of ownership, which can be crucial in disputes. The registration process involves applying to the Copyright Protection Center of China (CPCC) and paying the required fees. 
• Trade Secrets: In most countries, including China, trade secrets are not registerable. In China they are protected through a multi-layered framework that includes the Anti-Unfair Competition Law, the Civil Code, and the Criminal Law. This allows for criminal prosecution in severe cases. Companies need to implement strict internal controls to manage their trade secrets. This can be done by limiting access to sensitive information, using non-disclosure agreements (NDAs), and training employees on confidentiality obligations. Then, companies can pursue civil or criminal legal action when misappropriation occurs 

The enforcement of IP rights in China involves multiple agencies and mechanisms:

• Administrative Enforcement:  Administrations for Market Regulation (AMR) can impose fines, confiscate infringing goods, and order cessation of infringing activities.
• Judicial Enforcement: Specialized IP courts and IP tribunals handle IP-specific disputes.
• Customs Enforcement: The General Administration of Customs of the People’s Republic of China (GACC) can seize infringing goods at the border, preventing counterfeit products from entering or leaving the country.
• Alternative Dispute Resolution: Mediation and arbitration are increasingly used to resolve IP disputes, and are generally available in China.
• Criminal Enforcement: Public Security Bureaus (PSB) investigate certain criminal IP infringement cases.  

Despite improvements made over the years, China’s IP regime continues to present significant challenges for companies doing business in China. Ongoing concerns include:

• counterfeiting and piracy
• bad faith trademark registrations
• trade secret theft
• inconsistent enforcement of patent and trademark infringement cases
• online piracy
• technology transfer

In addition, complex legal procedures, local protectionism, and lengthy litigation processes can create challenges for Canadian companies seeking to enforce their IP rights.  

Canadian companies must remain vigilant and proactive in protecting their IP rights. As early as possible (ideally before entering the market), companies should develop a comprehensive IP protection strategy for China. 

Properly registering your IP is essential - only if the right is registered in China can it be enforced in China. Further, monitoring the Chinese market is essential to ensure that copies of your products are not making their way to your clients, wherever in the world they are located.

Understanding the legislative framework, leveraging enforcement mechanisms, and addressing the unique challenges of the Chinese market are crucial for safeguarding your IP in China. 

Finally, it is essential to establish clear contractual clauses on intellectual property protection with partners, distributors, licensees, or employees to help minimize the risk of infringement by these parties.

Find more in-depth advice on how to register and protect your IP in China.

Canada’s Intellectual Property Office (CIPO) also provides information and guidance – including a China-specific guide – on protecting Your IP abroad.

Also, please do not hesitate to contact the Trade Commissioner Service directly with any inquiries.