Trade mark and IP support for UK fashion SMEs in China
17/07/2023
UK fashion and textile brands can access support from the UK Intellectual Property Office (IPO) in China on issues relating to trade marks, copyright and unfair competition. Here the IP attaché team, based in Beijing and Shanghai, outlines what UK brands need to know.
For over a decade, the UK Intellectual Property Office (IPO) has posted an Intellectual Property Attaché Team to China, one of the largest markets for consumer-facing sectors. The IP attaché team, based in the Beijing Embassy and Shanghai Consulate-General, is responsible for engaging with Chinese IP authorities, but also provides on-the-ground support to UK exporters with IP queries or issues.
The majority of businesses the IP attaché team supports are small and medium enterprises (SMEs) who have a limited physical presence in the market. We work together with other embassy teams that cover specific industry sectors to engage SMEs at early stage, flagging risks and laying out potential mitigation measures before real problems emerge. Apart from commonly known issues such as counterfeiting or copycat products, there are other ‘early-stage risks’ which can impact UK businesses in China’s fashion market, and can sometimes be overlooked by SMEs. For example, your trade mark could be pre-emptively registered in China by another party, which will then block your own filing due to China’s first-to-file system. This can frustrate or block SMEs’ business plans in China before they get started.
The China IP Attaché Team is available for one-to-one discussions, either where a business is preparing to enter the Chinese market or in cases where an infringement or dispute has already occurred. Although such discussions are not a substitute for professional legal advice from IP professionals, we can help SMEs to quickly raise their knowledge about enforcement basics, give an idea of costs that may be involved, and help to form questions to be used when engaging a lawyer. You can contact the IP attaché team on the details provided at the end of this article.
It may surprise UK firms that enforcing registered rights in China is often less challenging than expected. However, protecting fashion designs from counterfeiting and copycatting in China is likely never to be an easy task since some of the elements in fashion design are not covered by registered rights. The China IP Attaché Team provides a range of factsheets online which include information on enforcing rights. As a quick overview of some routes for enforcing your IP rights:
Trade marks
Products bearing an identical or closely similar mark to the registered trade mark of your product could amount to trade mark infringement. Enforcing registered trade mark rights is comparatively straight forward. Enforcement authorities, and online and offline marketplaces, have relatively mature processes for dealing with infringements, for example taking down infringing offers for sale through e-commerce platforms.
Note, however, that trade mark rights are territorial, which means that a UK-registered trade mark will not automatically protect the right owner in Chinese market. In most of cases the right owner will have to rely on a China-registered trade mark, or an International Registration that is designated to China.
Copyright
As an unregistered right, copyright automatically arises when the original work is created, and is recognised in China regardless of where the creation takes place. A claim of copyright infringement may be enforced against products such as those bearing creative images or patterns of the original design, or those directly using images or content from marketing materials of the original products.
Unfair competition
In some cases of copying products, the behaviour may amount to ‘passing-off’, which amount to an infringement under China’s Anti-unfair Competition Law. In a recent iconic ruling, a leading Chinese fast fashion brand managed to win an unfair competition case against another apparel brand, by proving the alleged infringer essentially copied a large volume of original designs, and used marketing materials which confused consumers over the infringing products’ true origin.
Contact details:
Samuel Stone, IP Attaché, China, British Embassy Beijing
Max Jiang, Senior IP Officer, British Consulate-General Shanghai
Leo Zhuang, IP Officer, British Embassy Beijing
Selling overseas
UKFT’s International Business team helps members to maximise potential sales, in the UK and overseas markets. We have produced a series of guides to some of the key export markets for UK fashion and textiles and the latest Free Trade Agreements. We have also produced guides to some of the key import markets for UK fashion brands.
Helping UK fashion and textile companies to trade overseas