Protecting your intellectual property in China: trademark, NNN agreement, customs

Manufacturing in China means entrusting a third party with your drawings, your samples and your logo. Your intellectual property (IP) — trademarks, designs, know-how — is therefore exposed from the very first request for a quote.

Yet IP rights are territorial: a European Union (EU), UK or US trademark has no effect in China. Here are the protections to put in place, in the order in which they serve you. Legal terms are explained as the text goes along; for international trade acronyms, see our import glossary.

Why China is different: the first-to-file rule

China applies a so-called first-to-file system: the right to a trademark arises from registration, and the first party to file obtains it. The US International Trade Administration (ITA) sums up the risk: bad-faith filers can get ahead of the legitimate owner, then sell the trademark back to them or profit from their reputation.

The danger does not concern only trademarks that sell in China. The China IP SME Helpdesk, an information service funded by the EU for small and medium-sized enterprises (SMEs), points out that a bad-faith filing can lead Chinese Customs to seize your own products on export. Chinese law also expressly targets the case of an agent or representative who files their partner's trademark.

The remedies are long and uncertain: opposition (challenging a trademark application within the short period following its publication), invalidation (having a registered trademark canceled) or a negotiated buyout. The Helpdesk therefore advises building your IP strategy at least one year before working with China, even if you only manufacture there, and filing before trade shows, meetings with partners, factory visits or online sales.

Filing your trademark in China: four reflexes

1. Cover the right classes and subclasses

Goods and services are divided into 45 classes, numbered categories defined by the international Nice classification. China further splits each class into subclasses, and goods in the same subclass are generally treated as similar. Missing a subclass means leaving it open for a third party to register an identical trademark there.

The Helpdesk recommends covering every relevant subclass, including for goods adjacent to your range. Stay tied to a real or planned activity, however: current law already rejects bad-faith filings with no intent to use, and the revised law, applicable from January 1, 2027, targets filings with no intent to use that clearly exceed the normal needs of the business.

2. File a name in Chinese characters

A trademark in Latin letters does not protect against its equivalent in Chinese characters: they are two separate filings. If you do not choose a Chinese name, the market or a competitor will do it for you.

Three methods exist:

• literal translation of the meaning, if the trademark means something;
• phonetic transcription, with characters that sound like the trademark;
• a combination of the two, ideally a name that sounds right and carries a positive meaning.

Have the name validated by native speakers: the sound, the tone and even the look of the characters matter.

3. Go through a Chinese trademark agency

A foreign applicant with no domicile or establishment in China must go through a local trademark agency, and the application is drafted in Chinese. Ask the agency for proof of its declaration with the CNIPA: the revised law, applicable from January 1, 2027, makes this an obligation backed by fines.

Finally, beware of unsolicited emails pressing you to act: according to the Helpdesk, Chinese authorities never cold-call businesses.

4. Choose between a direct filing and a Madrid designation

Two routes exist: a direct filing with the CNIPA (China National Intellectual Property Administration), or extending an existing trademark through the Madrid system, managed by the World Intellectual Property Organization (WIPO). In the second case, you "designate" China in an international application based on your original trademark, known as the basic mark.

The two routes can be combined: your agency will tell you which one suits each element of the portfolio.

Term, cost and use of a Chinese trademark

A Chinese trademark is valid for 10 years, renewable indefinitely in 10-year periods.

The Helpdesk's 2022 fact sheet states an official fee of 300 RMB (renminbi, or yuan) per class for 10 products, plus 30 RMB for each additional product, and a total cost of €500 (≈ $560) to €700 (≈ $780) and up per application, agency fees included. A single application can cover several classes, but the fee is still due class by class. The schedule may have changed and varies with the filing method, paper or electronic: have your agency confirm the amount currently in force.

A trademark unused for three consecutive years can be canceled at the request of a third party: this is cancellation for non-use. Keep your evidence of use and ask your counsel what counts as use in your case, especially if you manufacture in China only for export.

Hong Kong and Macao: separate territories

WIPO makes it clear: to date, protection obtained for China through the Madrid system covers neither Hong Kong nor Macao, and neither does a direct filing with the CNIPA. Hong Kong keeps its own trademark register, managed by its IP office, the Intellectual Property Department (IPD), under its own ordinance (Cap. 559). The UK intellectual property office (UKIPO) also points out that its guidance on China applies to the mainland only.

A filing in Hong Kong should be discussed with your counsel as soon as your products transit through, are sold in, or are invoiced there by a local company. The official fee is HK$2,000 (Hong Kong dollars) for one class, then HK$1,000 for each additional class.

Protecting designs: the design patent

In China, the appearance of a product (shape, patterns, colors) is protected by a design patent. Unlike the EU and the UK, China does not protect unregistered designs: without a filing, there is no design right, unless you invoke copyright.

• Term: 15 years for applications filed since June 1, 2021 (10 years before that), with no renewal.
• Absolute novelty: the design must not have been disclosed anywhere in the world before filing.
• Priority: after a first filing in a country that is a member of the Paris Convention (which includes the EU countries, the UK, the US and Canada), you have 6 months to file in China while keeping that date.
• Grace period: 6 months, in limited cases only, such as a first showing at an international exhibition organized or recognized by the Chinese government.
• Partial designs (a handle, a graphical user interface alone) have been protectable since June 2021; graphical user interfaces already were since 2014, but together with the product.
• International filing has been possible since China joined the Hague Agreement, in May 2022.

Granted after a simple formal examination, with no search for novelty, the patent is generally obtained in under a year. The downside: a third party who files before you can obtain a patent on your design, which you will then have to challenge. If the shape serves a technical function, consider the utility model instead, a simplified patent that protects the shape or technical structure of a product, valid for 10 years.

In practice: file each key design before showing it, at a trade show or online, or within 6 months of a first filing abroad.

The NNN agreement: why a Western NDA is not enough

An NDA prohibits disclosing your information. But with a factory, the main risk lies elsewhere: that it manufactures your product for others or deals directly with your customers. The NNN agreement covers all three risks:

1. Non-disclosure: your confidential information is not shared with anyone.
2. Non-use: the factory does not manufacture your product or a similar product for anyone other than you.
3. Non-circumvention: the factory does not bypass you to sell to your customers, including through affiliated companies.

A Western NDA often fails on form: foreign law, foreign court, text in English only. Yet the factory and its assets are in China, where a foreign judgment, whether American, European or British, remains difficult and slow to enforce. The law firm Harris Sliwoski points out that Chinese courts are not required to enforce a US judgment.

The Helpdesk notes, however, that Chinese courts do accept confidentiality agreements: it is all in the drafting. The clauses that make the difference:

• the exact entity: the factory's Chinese legal name and Unified Social Credit Code (USCC, the official identifier of every Chinese company);
• the company's official seal (company chop), which binds it, affixed to the contract;
• Chinese law and a competent Chinese court for the factory; arbitration is an alternative to discuss with your lawyer;
• a Chinese version that governs, with English serving as the working text;
• liquidated damages (a sum set in advance, payable in case of breach), in an amount defensible in light of the likely harm.

Sign it before sending drawings, 3D files or samples. To verify a factory's legal identity, see our guide factory audit: vetting a Chinese supplier.

Molds and tooling: state who owns them

Paying for a mold settles almost nothing, Harris Sliwoski points out: you still have to specify who owns it, who holds it, where it may be used, whether it can serve other clients and when the factory must return it. These points belong in the manufacturing contract, signed once the factory has been selected. A solid mold clause provides for:

• ownership by the client, and the payment that triggers it;
• exclusive use for your orders;
• the conditions for return at the end of the relationship, including transfer to another factory;
• ownership of the improvements made by the factory.

In practice, common-sense precautions are added: marking the mold (plate or engraving), photos, a dated inventory and rules for maintenance and replacement in case of wear.

The manufacturing contract must also preserve the rights arising from the NNN: an "entire agreement" clause, stating that the contract supersedes any prior agreement, could wipe them out if poorly drafted. For the prototype and tooling phase, see our product development page.

Blocking copies at the border: customs recordal (GACC)

Key point in China: customs controls exports as well as imports, and most counterfeit goods it detains are exports. By recording your rights with the General Administration of Customs of China (GACC), you help it intercept copies before they reach Europe or North America.

This recordal enters your rights in the customs database, which can then enforce them at the border. The rules below are those of the Helpdesk customs guide (2020):

Once your rights are recorded, customs can detain a suspect shipment on its own initiative; once notified, you have three business days to request detention. You must then post a guarantee, a bond intended to cover costs and any harm to the shipper: it is capped at RMB 100,000 with recordal, versus the value of the goods without recordal.

In practice: as soon as a trademark or design is granted in China, record it with customs, at no official fee, and declare your factory as an authorized user so your legitimate shipments clear.

Action plan: what order to act in

1. Search for prior rights (identical or similar marks already filed) in China and Hong Kong, for the trademark and its Chinese name.
2. File the Latin trademark and the Chinese name in the relevant subclasses, ideally one year before production.
3. File key designs before any disclosure, or within 6 months of a first filing abroad.
4. Verify the legal entity of every factory you consider.
5. Have the NNN signed before sending drawings and samples.
6. Sign the manufacturing contract, mold clause included, when you place the order.
7. Record your rights with customs as soon as they are granted, with the factory declared as an authorized user.
8. Monitor new trademark publications similar to yours every month, so you can oppose in time.

Factory selection and qualification (steps 4 and 5) are covered in a dedicated guide.

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The role of NOVASEA

NOVASEA is neither a law firm nor a trademark agency, and this guide does not constitute legal advice. In our sourcing projects, we build these steps into the timeline and make sure each one happens at the right time: factory entity verified, NNN signed before drawings are sent, mold clause in the manufacturing contract. Filings and legal drafting remain the responsibility of your lawyer or trademark agency.