The honest answer most sourcing blogs skip
Plenty of articles tell you a factory copying your product is stealing. Inside China, that is often not the case. The question that decides it is narrow: did you own an enforceable right in China at the moment the factory made the copy? If the answer is no, there is usually nothing to enforce, because there was no Chinese right to break.
This is not a loophole a factory is exploiting. It is how intellectual property works everywhere. China is simply the place where a lot of importers find out their protection stopped at their own border.
Why your US or EU patent means nothing in China
IP rights are territorial. A patent granted by the USPTO, a trademark registered with the EUIPO, a UK registered design: each one protects you only in the country or region that issued it. The World Intellectual Property Organization states this plainly. A Chinese factory operating in China sits outside the reach of all of them.
To have a right a Chinese court can act on, you have to register that right in China. For patents and designs that means filing with the China National Intellectual Property Administration (CNIPA). For a trademark you can file directly with CNIPA or extend an existing mark into China through the Madrid Protocol. Until you do, your home paperwork carries no weight where the goods are actually made.
Who actually owns your brand in China?
China runs a first-to-file system for trademarks and patents. The right goes to whoever files first, not to whoever invented the product or used the brand first. You can have sold under your name for ten years at home and still own nothing in China if you never filed there.
That gap is where trouble starts. A factory, a competitor, or a professional trademark squatter can register your brand in China and own it. They can then have your own goods stopped at the Chinese border for infringing their mark, the one that should have been yours. CNIPA has tightened the rules on bad-faith filings in recent years, but the safe assumption stays the same: if you have not filed in China, you do not own it in China.
What makes copying your product illegal?
Copying crosses into illegal the moment you hold a Chinese right that it violates. Four things create that right:
- A Chinese registered trademark stops a factory from using your brand name or logo on its copies.
- A Chinese patent protects either the look of the product (a design patent) or how it works (an invention or utility-model patent), so a registered design or mechanism cannot be copied freely.
- An NNN agreement, governed by Chinese law and enforceable in a Chinese court, makes the factory contractually liable for non-use and non-circumvention, even where no patent exists.
- China's trade-secret protection under the Anti-Unfair Competition Law can apply, but only if you treated the information as secret and can prove the factory misused it, which is difficult without a signed NNN to anchor the claim.
Notice the pattern. Each of these is something you put in place. None of them appears on its own.
Can a factory legally make something similar?
Often, yes, even when you are protected. A design patent covers one specific appearance, so a competitor who changes the look enough can design around it and stay legal. A product with no novel, registrable feature, a plain tote bag or a standard phone stand, has little to protect in the first place.
This is why protection works best on what is genuinely yours: a distinctive shape, a real mechanism, a brand someone would recognise. Trying to fence off a generic item burns money and hands you a false sense of safety. Spend the protection budget where the product is actually distinctive.
What to do before you share a drawing
Put the layers in place before the first specification leaves your hands. Order matters as much as the protection itself.
- File your trademark in China first, before you contact a single supplier. It is the cheapest and most important move, and first-to-file makes the timing critical.
- Register a design or invention patent in China if the product has a genuinely novel look or function worth patenting.
- Sign a Chinese-language NNN with the factory's exact registered legal name and company chop before you send any design, sample, or tooling.
- Own the mould in writing. If you pay for the tooling, the contract should say you own it and can move it to another factory.
- Split sensitive production so no single factory holds the whole product, and share only what each supplier needs to do its part.
What if a factory is already copying my product?
You still have moves, though they are weaker and slower once the copy exists. If you hold any Chinese right, you can file a complaint with CNIPA or the local market regulator, or have a Chinese IP lawyer send a cease-and-desist, which often works because the factory wants to avoid a record. Customs recordation can get copies seized at the Chinese border before they ship.
Where you registered nothing, the realistic path is to register now to stop the copy spreading, move production to a supplier you control, and treat the loss as the cost of the lesson. Before you act, a paid hour with a China IP firm such as Harris Sliwoski is worth far more than the guesswork.
Where Mila Sourcing fits
The order is what most importers get wrong, and they usually learn it after the copy already exists. We put the sequence in the right place: trademark filed in China before any outreach, a bilingual NNN signed before a design moves, tooling ownership written into the contract, and production split where the product is worth protecting. That groundwork sits under Sourcing Activation and Full Production Management.
Related, if you are protecting a product right now: