IP Infringement

Overview

China runs a first-to-file system for trademarks and patents: the person who registers first generally owns the right, regardless of prior use elsewhere. This single fact drives almost every piece of advice we give overseas clients — register early, in China, in both Chinese and Latin characters — and it is why foreign brands so often find their mark already taken by a squatter.

China has also substantially strengthened its IP regime in recent years. The Trademark Law (amended 2019), the Patent Law (fourth amendment, effective 1 June 2021), and the Copyright Law (amended 2021) all raised statutory damages and introduced or widened punitive damages, making litigation a more realistic deterrent than it was a decade ago.

The three main rights (and trade secrets)

• Trademark — registered marks, well-known marks, and unregistered rights in limited cases. Infringement covers identical or confusingly similar use on identical or similar goods/services.
• Patent — invention patents (20 years), utility models (10 years), and design patents (15 years under the 2021 law). Utility models are granted without substantive examination, so they are cheaper but easier to invalidate — an important tactical point.
• Copyright — arises automatically on creation; registration is optional but is persuasive evidence of ownership and is strongly recommended for software and design works.
• Trade secrets — protected under the Anti-Unfair Competition Law; see our Unfair Competition page for the detail.

Common infringement scenarios

• Trademark squatting — a local party registers your brand first and then demands payment or blocks your market entry.
• Counterfeiting — factories producing or exporting goods bearing your mark, often mixed into otherwise legitimate shipments.
• Patent copying — a competitor replicates your product and undercuts you on price, domestically or at export.
• Design / mold theft — your approved molds or designs are run "on the side" to make unauthorised goods.
• Software / content piracy — unlicensed use of your software, images, or marketing material.

Enforcement routes — pick the right one

• Administrative enforcement — complain to the State Administration for Market Regulation (SAMR) for trademarks and unfair competition, or the National Intellectual Property Administration (CNIPA) for patents. This is often the fastest and cheapest way to raid a factory or seize counterfeit goods, though it yields penalties for the state rather than damages for you.
• Civil litigation — sue in a specialised court (the Beijing, Shanghai, and Guangzhou IP Courts, plus IP tribunals in other cities, and the Supreme People's Court IP Tribunal for technical appeals). This is where you recover damages and injunctions.
• Customs recordation — record your trademark or copyright with China Customs so infringing goods are stopped at the border on export or import.
• Criminal enforcement — for serious counterfeiting, referral to the public security authorities (PSB) can lead to criminal penalties.

Evidence and preservation

Chinese IP litigation is won on evidence. Standard practice includes:

• Notarised purchase — buy the infringing product through a notary to lock in proof of sale.
• Evidence preservation orders (证据保全) — ask the court to seize evidence or freeze relevant materials before it is destroyed.
• Preliminary injunctions (行为保全) — stop ongoing infringement pending trial, particularly important for trade fairs and e-commerce.
• Online platform takedowns — Alibaba, Taobao, JD, and other platforms have formal IP-complaint procedures that can remove listings quickly.

Damages and remedies

• Actual loss or infringer's profit — computed from your loss, the infringer's gains, or a reasonable royalty.
• Statutory damages — up to RMB 5 million for trademarks, patents, and copyright where actual amounts are hard to prove.
• Punitive damages — up to 5× for wilful, serious infringement under the 2019/2021 amendments.
• Injunctions and destruction — orders to stop, recall, and destroy infringing goods and tooling.
• Costs — the losing party can be ordered to pay reasonable attorneys' fees and investigation costs.

Strategy for overseas rights holders

1. Secure your rights first — register trademarks (in Chinese and Latin script), patents, and copyright before you enter or export to the market.
2. Record with customs — so the border itself becomes an enforcement tool.
3. Monitor — watch trademarks, e-commerce listings, and trade-fair participation.
4. Enforce proportionately — start with cease-and-desist letters and platform takedowns; escalate to administrative raids or litigation where the infringement is material.
5. Move quickly — delay allows infringers to build volume and disperse assets.

Timeline and cost

Administrative actions can produce results in weeks to a few months. Civil first-instance cases typically run 6–18 months, longer where validity challenges (patent invalidation, trademark cancellation) are raised as a defence. Costs vary widely with the route and the rights at stake; statutory-damages awards in China remain modest relative to the US or EU, so the economic goal is often stopping the infringement and protecting the market rather than a huge damages cheque.