Only few months ago China has accessed the Hague Agreement concerning the International Deposit of Industrial Designs extending the routes available to obtain protection for a design.
At currently a foreign applicant that wishes to protect its design in China can follow three different routes. This article will make an introduction of design application in China from the aspects of application method.
There are three ways of applying for design patent in China:
- The Hague Agreement System (based on The Hague Agreement concerning the International Deposit of Industrial Designs).
If the applicant is a national, resident or has habitual residence in one of the countries that belong to the Hague system he/she can have the design to be protected in multiple countries / regions at the same time using the so called Hague System.
When submitting the design application, the applicant can select the designation countries / regions that need to obtain protection and the cost will also change with the number of selected countries.
The application needs to go through formal examination (WIPO review) and substantive examination (review by designated country) and it will take about one year from application to registration.
The advantage of this method is that design protection can be obtained by submitting only one application with a lower cost compared with Paris Convention.
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- Paris Convention(based on Paris Convention for the Protection of Industrial Property).
If the applicant only intends to apply for design protection in one or fewer countries / regions, the Paris Convention approach can be a good choice. After submitting the first design application in one country/region, the applicant may make subsequent extensions in other member states within the specified time (usually 6 months).
The examination period for this route is usually only a few months, however the cost might be higher than the previous method.
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- Apply directly in China (without any priority or prior application)
Without any prior application, the applicant may also choose to directly make the first design application in China. In this case, the examination period is about 6 months. If the applicant wants to apply in other countries / regions in the future, he can also refer to the Paris Convention or Hague Agreement using the Chinese application as priority.
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Conclusions
Applicants can choose a suitable design application method according to their own budget, time needs and the scope of protection. It should be noted that the different provisions on novelty and priority in different regions, so as to avoid the failure to authorize or risk of invalidation. When a design is judged to lose novelty in a country / region, it is likely that the design will not be authorized, or even if it is authorized, its right may be invalid in the stage of litigation, resulting in a state of unprotected.
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.
