Designs are protected under China’s Patent Law. Article 2 defines a design as a new design of the shape, pattern, or their combination, or the combination of colour with shape and pattern, of a product that creates an aesthetic effect and is suitable for industrial application. A design granted a Chinese patent is protected by the Patent Law.

In practice, many designs that satisfy novelty requirements have not been the subject of Chinese design patent applications, particularly those belonging to overseas owners whose products have not entered China. This article considers other possible routes for protecting such designs.

1. Copyright protection

Industrial designs and works of applied art can overlap and are sometimes difficult to distinguish. Applied art is among the works addressed by the Berne Convention. Article 2(7), subject to Article 7(4), leaves the extent and conditions of protection for applied art and industrial designs to the legislation of member countries. TRIPS Article 25(2) specifically concerns textile designs and permits members to meet that protection obligation through industrial design law or copyright law.

China’s Copyright Law protects works of fine art but, in the legislation discussed in this article, did not expressly classify works of applied art within that category. The article contrasts this with the treatment of applied art in Germany, Japan and the United Kingdom.

Article 4(8) of China’s Copyright Law Implementing Regulations defines works of fine art as two- or three-dimensional artistic works created with lines, colours or other media to produce an aesthetic effect, including paintings, calligraphy and sculptures. The open-ended wording indicates that these examples are not exhaustive and can support an interpretation encompassing applied art.

Article 6(1) of the State Council’s 1992 Regulations for the Implementation of International Copyright Treaties provides a 25-year term, from completion, for qualifying foreign works of applied art. This is a further statutory basis for protecting such works. Applied art means artistic works put to practical or industrial use; its scope is not identical to that of industrial designs. The author considers that copyright can encompass applied-art works outside the scope protected as industrial designs.

Accordingly, a design for which no Chinese design patent was sought may qualify for copyright protection. The article identifies two conditions for the foreign works it discusses: the owner’s country must be a Berne Convention member, such as Japan, and the design must meet the applicable definition of a work of applied art in China and in the owner’s country. Eligibility and protection depend on the particular work and the applicable rules.

2. Other routes

Industrial designs combine aesthetic and practical functions and lie at the intersection of artistic works and inventions. They may overlap with copyright, product trademarks, packaging and decoration. Trademark law and unfair-competition law may therefore provide additional routes.

Trademark protection

Industrial designs and trademarks are both forms of industrial property. Design protection covers product shapes and patterns, while trademarks may include two-dimensional graphic signs and three-dimensional signs. Overlap can lead to conflicts: for example, a trademark may be incorporated into a design, or a design may contain a pattern similar to another party’s trademark.

For the registered-trademark protection discussed here, the whole or an important part of the design’s shape or pattern must be registered as a trademark in China.

Protection against unfair competition

Article 5 of the Anti-Unfair Competition Law discussed in the original article protected the distinctive packaging and decoration of well-known goods against unauthorised use that caused confusion. Design features can overlap with such packaging or decoration, particularly where the design is a product’s outer box, can or bottle.

For example, a Coca-Cola bottle may be the subject of a design patent while also constituting the packaging of a well-known product, allowing overlapping protection. To rely on the unfair-competition route described here, the product must have entered the Chinese market and satisfy the relevant requirements for well-known goods and distinctive packaging or decoration.

A design without a Chinese patent may therefore be considered for copyright, trademark or unfair-competition protection, depending on the facts and the legal requirements of each route.

TRIPS Article 25: https://www.wto.org/english/docs_e/legal_e/27-trips_04b_e.htm