Tag: patents

Protecting intellectual property (IP) in China presents unique challenges for tech companies and global brands. With a first-to-file (先申请原则, xiān shēnqǐng yuánzé) system, persistent issues like trademark squatting (恶意抢注, èyì qiǎngzhù), and fast-evolving legal frameworks, even seasoned legal teams must proactively adapt. This guide delivers actionable insights on patents, trademarks, and trade secrets in China—grounded in official U.S. and Chinese sources—so you can defend your innovation and brand in this critical market.

Key Takeaways:

• China’s first-to-file regime makes early IP registration essential—use outside China gives no priority.
• Trademark squatting is a major risk; learn proven strategies to prevent or respond to bad-faith filings.
• Understand how the Anti-Unfair Competition Law (反不正当竞争法, fǎn bù zhèng dāng jìng zhēng fǎ) protects trade secrets and the evidentiary requirements involved.
• Compare administrative, civil, and criminal enforcement routes—know when each is most effective.
• Review realistic estimates for filing costs, timelines, and why “success rates” should be treated with caution in China.

First-to-File System: Patents and Trademarks in China

China’s IP regime is fundamentally first-to-file—priority goes to the first applicant, not the first user or inventor. This principle shapes both patent and trademark protection. Delaying registration until after market entry or public launch can mean losing exclusive rights, even if you have evidence of prior use elsewhere (source).

Patents

• Invention patents (发明专利, fāmíng zhuānlì): 20-year term from filing; must be new, inventive, and useful.
• Utility models (实用新型, shíyòng xīnxíng): 10-year term; for incremental technical improvements. Lower threshold with no substantive examination.
• Design patents (外观设计, wàiguān shèjì): 15-year term—this change took effect with the 2021 Patent Law amendment (source).

All patent applications must be filed with the China National Intellectual Property Administration (CNIPA). Foreign applicants are required to appoint a licensed local patent agent.

U.S. and foreign companies should file for patents in China before any public disclosure to avoid losing the right to protection (source).

Trademarks

China does not recognize “first use.” Only the first to register (注册, zhùcè) owns the rights. Trademark squatting is prevalent—bad-faith actors may register your mark long before you enter the Chinese market.

• Trademarks are filed with CNIPA; foreigners must use an authorized Chinese trademark agency.
• China’s subclass system means you must file in all relevant classes and sub-classes to ensure complete protection.
• The opposition window is set by law as 3 months after publication of the application (source).
• Registration timelines are typically estimated at 9-18 months if uncontested (industry estimate; see notes below).

Registering both your English mark and Chinese language equivalents (transliterations) is essential. For more on local adaptation, see Cultural Intelligence Tactics for Tech Leaders in China.

China’s Evolving IP Landscape

China’s IP ecosystem is under active reform, especially in new fields like artificial intelligence. According to the China National Intellectual Property Administration, China is working toward improved IP protection for emerging industries and is actively participating in the development of international IP rules.

Trademark Squatting Prevention Strategies

Trademark squatting (恶意抢注, èyì qiǎngzhù) is widespread in China, enabled by the first-to-file system. Opportunists register foreign marks to profit from reselling, ransoming, or leveraging them against the true brand owner. Prevention is far easier than cure.

Prevention Checklist

1. File early: Register your English and Chinese marks before any public disclosure, trade shows, or deals.
2. Cover all variants: Include English, Chinese (characters and pinyin), and “sound-alike” versions.
3. Monitor the register: Use Chinese counsel or watch services to detect infringing or similar applications.
4. Act within the opposition window: You have 3 months after publication to file an opposition (set by law).
5. Gather evidence: If challenging a bad-faith registration, document your use and reputation in China—though the bar is high and success is rare unless you can prove “well-known mark” status (source).

Legal Remedies

• Opposition proceedings: File within the fixed 3-month window after publication.
• Invalidation actions: If you miss the opposition period, you may seek to invalidate the registration under Article 44 of the Trademark Law (bad-faith registration), though this process is evidentiary intensive and outcomes are not guaranteed.

According to CNIPA, in 2025, guidance and consulting services were provided over 4,800 times to help address overseas trademark squatting, reportedly recovering 2.75 billion yuan ($390 million) for affected enterprises (source).

Consequences of Inaction

• You may face ransom demands from squatters, or lose the right to use your own mark in China.
• Customs may seize goods bearing “infringing” marks, even if they are your own brand elsewhere.
• Legal recourse against squatters is time-consuming, costly, and often unsuccessful without clear evidence of bad faith and reputation.

For guidance on integrating with Chinese payment and commerce systems, see Integrating Alipay and WeChat Pay: Merchant Setup Guide.

Trade Secret Law and the Anti-Unfair Competition Law

The primary protection for trade secrets (商业秘密, shāngyè mìmì) in China comes from the Anti-Unfair Competition Law (反不正当竞争法, fǎn bù zhèng dāng jìng zhēng fǎ). Amendments in 2019 strengthen protections, but enforcement remains procedural and evidence-heavy (USPTO China IP Toolkit).

Key Provisions

• Definition: Trade secrets include technical or business information that is not known to the public, has commercial value, and is protected by confidentiality measures (Article 9).
• Infringement: Acquisition, disclosure, or use of trade secrets by improper means is prohibited. This includes theft, bribery, fraud, coercion, or electronic intrusion.
• Burden of Proof:
  • You must prove the existence of a trade secret (i.e., value, secrecy, and confidentiality measures).
  • Reasonable confidentiality measures include contracts (合同, hé​tóng), NDAs (保密协议, bǎomì xiéyì), training, and access controls.
  • Demonstrable misappropriation by the accused party.

Document all confidentiality regimes and employee training. Written agreements and digital access logs make a difference in court.

Judicial Reality

Enforcement is possible, but success depends on gathering admissible evidence and clearly demonstrating commercial value and secrecy. Many cases fail due to insufficient evidence or lack of clear contracts (source).

Enforcement Options: Administrative, Civil, and Criminal

China provides three main enforcement channels: administrative, civil, and criminal. Each has distinct procedures and strategic use cases (source).

Administrative enforcement is typically the fastest route for clear-cut counterfeiting. Civil litigation is most often used for seeking damages or injunctive relief. Criminal enforcement is rare, requiring proof of serious and large-scale infringement.

Cross-Border Assistance

The U.S. Patent and Trademark Office’s IP Attachés in Beijing, Shanghai, and Guangzhou provide support for U.S. companies—helping develop IP protection strategies, find local legal counsel, and advocate for rights holders in exceptional cases (source).

Filing Costs, Timelines, and Data Caveats

Filing and agent fees in China are competitive internationally, but the precise figures vary by case and provider. The following estimates are widely cited in industry practice; always consult the latest CNIPA fee schedule or a professional agent for specifics. Success rates for filings are not published by authorities and depend heavily on the quality of the application and whether disputes arise. Treat quoted “success rates” as market averages, not official statistics (source).

Notes: These figures are based on market averages and unofficial surveys. For the latest official fees, see the CNIPA fee schedule. Registration timelines are estimates and can be affected by disputes or office actions. Official “success rates” are not published—outcomes depend on the application quality and any opposition or invalidation proceedings.

Common Pitfalls and Pro Tips

• Delaying registration: Waiting until after market entry exposes you to squatting and costly disputes.
• Narrow class coverage: Filing in too few classes or sub-classes enables copycats and squatters to exploit gaps.
• Weak trade secret controls: Failure to implement robust internal controls (NDAs, training, access logs) can render enforcement impossible.
• Assuming Western-style enforcement: China’s evidence rules and remedies differ; administrative action is often the fastest initial step.
• Overlooking Chinese marks: Register both English and Chinese transliterations to prevent third-party misuse.
• Not leveraging official resources: Use the U.S. IP Attaché program and CNIPA/industry platforms for guidance and support (source).

Conclusion and Next Steps

Protecting your IP in China requires urgency, local expertise, and ongoing vigilance. File all key rights early and broadly, document trade secret protections, and use a mix of enforcement channels as appropriate. Engage with government and industry resources—such as the U.S. Patent and Trademark Office’s China IP Attachés—for practical help navigating disputes and local practice.

For deeper strategies on cross-cultural and digital adaptation, see Cultural Intelligence Tactics for Tech Leaders in China and Integrating Alipay and WeChat Pay: Merchant Setup Guide. For official updates, always consult the China National Intellectual Property Administration and the USPTO China IP Toolkit.