China: China Design Practice Guide 2015

Legal framework

Article 2(4) of the Patent Law defines a 'design' as the shape or pattern or a combination thereof, or the combination of colour with a shape or pattern, of a product, which has an aesthetic appeal and is fit for industrial application.

Article 23 of the Patent Law states that any design for which patent rights may be granted must not be a prior design, nor has any entity or individual filed, before the filing date, with the State Intellectual Property Office (SIPO) an application relating to the identical design disclosed in patent documents announced after the filing date.

Any design for which patent rights may be granted must significantly differ from prior designs or a combination of prior design features.

Any design for which patent rights may be granted must not conflict with any other party's legitimate rights obtained before the filing date.

'Prior design' refers to any design known to the public in China or abroad before the filing date.

The Patent Law entered into force on April 1 1985.Since then, designs have been protected as a type of patent. Under the Patent Law, a design must be integrated in a product. Handicrafts, agricultural products, livestock products or natural products which cannot be mass produced do not meet this criterion. The colour of a product alone cannot constitute a design, unless the change of colour of a product constitutes a pattern.

Unregistered designs

Unregistered designs cannot obtain protection in China.

Registered designs

Protectable subject matter

According to Article 5(1)of the Patent Law, any invention that is contrary to law or social morals or which is detrimental to the public interest, cannot be granted patent rights. For instance, a design containing a pattern incorporating the Chinese currency (the Renminbi), drawings or photographs of violence, murder or pornography, or famous buildings (eg, the Tian'anmen Gate or the White House) shall not be granted patent rights.

According to Article 25(6) of the Patent Law, designs of two-dimensional printed goods, constituting a pattern, colour or a combination thereof, which serve mainly as indicators, shall not be granted patent rights. The exceptions are wallpaper and textiles, which are patentable subject matter.

According to Article 2(4) of the Patent Law, the following are ineligible for design patent protection:

  • any fixed building, bridge or similar structure which depends on specific geographic conditions and cannot be rebuilt elsewhere (eg, a villa built near a specific lake or hill);
  • any product which has no fixed shape, pattern or colour because it contains a substance that has no fixed shape (eg, a gas or liquid);
  • any component part of a product which cannot be partitioned or sold and used independently (eg, the heel of a sock, the peak of a hat, a cup handle);
  • in the case of any product consisting of several component parts which have a different shape or pattern, each component part, if it cannot be sold and used independently, is not patentable. For example, a jigsaw consisting of plug-in pieces of varying shapes is patentable subject matter only when one application relating to all of the pieces is filed;
  • any product which cannot be perceived visually or be determined with the naked eye, and whose shape, pattern or colour must be distinguished by means of specific instruments (eg, a product whose pattern is visible only under an ultraviolet lamp);
  • any design which is not the design of the natural state of the product (eg, an animal made out of a handkerchief);
  • any design which primarily consists of the original shape, pattern or colour of a natural object. Such designs normally include two elements: the natural object itself and the imitational design of said natural object;
  • any work which belongs wholly to the field of fine arts, penmanship or photography;
  • any design which constitutes only common geometric shapes or patterns in the field of the relevant product;
  • the pronunciations or meanings of words and numerals; and
  • game interface, and patterns displayed by the displaying device of a product, which are not relevant to human computer interaction or to the realisation of the function of this product (eg, wallpaper on an electronic screen, pictures shown during the start or shutdown of the device or layout of drawings and texts on websites).


The official filing fee for a design application is Rmb500 ($81); if priority is claimed, the official fee for claiming each priority is Rmb80 ($13).

After receiving the allowance notice from the Patent Administration Department, the applicant must pay a patent certificate fee (including a printing fee and stamp tax) of Rmb205 ($33) and the annuity for the year in which the design application is granted– usually Rmb600 ($97).

The first to third-year annuity for a design patent is Rmb600 ($97) per annum; the fourth to fifth-year annuity is Rmb900 ($145); the sixth to eighth-year annuity is Rmb1,200 ($194); and the ninth to 10th-year annuity is Rmb2,000 ($323).


Application process

A design application must be filed with SIPO either in hardcopy or electronically. If a foreign priority is claimed, the design application must be filed in China within six months of the priority date (or the earliest priority date, if multiple priorities are claimed).

At the time of filing, the applicant must submit the following information:

  • its name and address;
  • the name and nationality of the designer(s);
  • priority (if any);
  • drawings or photographs of the design; and
  • a brief explanation of the design.

An executed power of attorney can be submitted on the filing date or later. A certified copy of the priority document (if priority is claimed) and the assignment document (if the applicant in China is different from that of the priority application) must be submitted on filing or within three months of filing.

In a design application for a product with graphic user interface (GUI), views of the complete product, instead of the GUI alone, should be submitted. Where the GUI is dynamic, views of the complete product with at least one state of the GUI must be submitted; as to other states of the GUI, views of the key frames are needed. The views should be able exclusively to determine the trend of change of the animation in the dynamic patterns.

The brief explanation of the design must indicate the title and use of the product incorporating the design and the design's essential features, and designate a drawing or photograph which best shows the essential features of the design. The explanation must not contain any commercial advertising and must not be used to indicate the function of the product.

When necessary, a brief explanation in a design application for a product with GUI should include the use of the GUI, the location of the GUI on the product, ways of human computer interaction and different states of the GUI.

Where a design application seeks concurrent protection of colours, drawings or colour photographs must be submitted.

Within two months of the filing date, the applicant may amend the drawings or photographs voluntarily without going beyond the original disclosure.

There is no statutory procedure for deferring publication of a design application in China.

In the examination of design applications, the general rule –that a design application shall be limited to one design incorporated into one product –applies, except in the following circumstances:

  • A maximum of 10 similar designs of the same product can be included in one design application. In such case, one of these designs should be indicated as the main design in the brief explanation.
  • Multiple designs may be maintained in one design application to the extent that they are incorporated into products belonging to the same class and are sold or used in sets. In this context, the expression 'the same class' means that the products incorporating the designs belong to the same sub-class in the Locarno classification system. The expression 'sold or used in sets' means that the products incorporating the designs have the same design concept and are customarily sold together or used at the same time. For instance, coffee cups and coffeepots are classified in the same Locarno sub-class and are customarily deemed as being sold together and used at the same time. Thus, the design of a coffee cup and that of a coffeepot with the same overall design concept can be maintained in one design application.

Examination and appeals procedure

There is no substantive examination procedure for a design application. During preliminary examination, if no grounds for rejection are found, SIPO will grant the design patent right. If the originally filed documents of a design application meet all requirement sat preliminary examination, the design application will be allowed, usually within three to five months of the filing date.

If the application is rejected by SIPO, the applicant may, within three months of receipt of the rejection decision, request the Patent Re-examination Board to re-examine the application. At the time of requesting re-examination, the applicant is entitled to amend the drawings or photographs without going beyond the original disclosure.


The applicant shall, within two months of receiving the allowance notice from SIPO, pay the patent certificate fees (including a printing fee and stamp tax) and the annuity for the year in which the design application is allowed. The patentee usually receives the patent certificate within two to three months.

Removal from register

According to Article 45 of the Patent Law, commencing from the date that the grant of the patent right is announced by SIPO, any entity or individual which considers that grant of the patent right does not conform with the relevant provisions of the law may request the Patent Re-examination Board to declare the patent right invalid. Any patent right which has been declared invalid shall be deemed non-existent from the outset.

If the patentee or party which requested invalidation is not satisfied with the Patent Re-examination Board's decision, such party may institute legal proceedings in the people's court within three months of receipt of the decision notification.


After the grant of a design patent, no entity or individual may, without the patentee's authorisation, exploit the patent (ie, manufacture, offer to sell, sell or import the product incorporating the patented design) for production or business purposes.

The period for instituting legal proceedings concerning the infringement of patent rights is two years from the date on which the patentee or any interested party obtains or should have obtained knowledge of the infringing act.

A patentee which decides to take action against an infringer has two options:

  • The legal route – the patentee can complain to a competent court, with two instances, requesting the court to issue an injunction to stop the infringing act and award damages; or
  • The administrative route – the patentee can complain to a local IP office, requesting the office to order the infringer to stop the infringing act or calculate the damages in mediation. However, the office may not enforce its own order; the patentee must rather request a court to enforce the order. If either party is dissatisfied with the order, it may sue the office in a legal court under the Administrative Proceedings Law; if either party is dissatisfied with the damages calculated by the office or if mediation fails, it may institute legal proceedings in a competent court under the Civil Proceedings Law, with the opposing party as the defendant.

For infringement proceedings, the first instance usually lasts between approximately nine and 12months; the second instance usually lasts between six and nine months.

In an infringement case that is already in progress, more often than not, the alleged infringer will file a request for invalidation before the Patent Re-examination Board. At its own discretion, the court may stay the infringement case according to the circumstances (the alleged infringer may use the notice of acceptance of invalidation request to ask the court to stay the infringement proceedings); in fact, judges will more than likely await the board's decision on the validity of the patent. After the board issues its decision, either party may bring the decision to the competent legal court (the Beijing No 1 Intermediate People's Court, whose ruling may be appealed to the Beijing High People's Court, since the board is domiciled in Beijing).

An invalid ation case before the board usually lasts between nine and 12months;the first instance usually lasts between approximately nine and 12months, and the second instance usually lasts between six and nine months.

Ownership changes and rights transfers

Article 10 of the Patent Law governs the right of patent application and assignment of patent rights.

Any assignment by a Chinese entity or individual of the right of patent application or of the patent right to a foreigner, a foreign enterprise or any other foreign organization must adhere to the formalities contained in the relevant laws and administrative regulations.

Where the right of patent application or the patent right is assigned, the parties will conclude a written contract and register it with SIPO, which will announce the registration. The assignment takes effect as of the date of registration.

Article 12 of the Patent Law states that any entity or individual exploiting the patent of another shall conclude with the patentee a licence agreement for exploitation and pay the rights holder a fee for such exploitation. The licensee has no right to authorise any entity or individual – other than that referred to in the contract – to exploit the patent.

Related rights

According to Article 23 of the Patent Law, any design for which patent rights may be granted must not conflict with any other party's legitimate right obtained before the filing date.

'Legitimate right' refers to a right or interest which is recognised by Chinese law and is valid before the filing date of the relevant design patent. This includes trademark rights, copyright, rights to enterprise names (including trade names), image rights and rights to the packaging and decoration of well-known goods.

For instance, a new shape of a wine bottle may obtain design patent protection under the Patent Law and may also be protected as a three-dimensional trademark under the Trademark Law. Further, works of applied art (eg, handicrafts or industrial articles) can obtain copyright protection. A work of applied art may also be the object of design patent protection if it can be mass produced in industry.

By Jianhui ZHENG (Ms.)
Partner, Patent Attorney
Peksung Intellectual Property Ltd.

This article first appeared in Designs: A Global Guide 2015, a supplement to World Trademark Review, published by The IP Media Group.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.