When you design or create something, it’s likely that you are fairly attached to that product; that is to say, you wouldn’t want anyone to copy it much less reap any monetary rewards from your hard work.
Designers everywhere are faced with this predicament when their designs move from the drafting table to the production phase. When outsourcing your garment manufacturing to China, how can you protect your original designs from being copied?
Chinese Patent Law
Designs can be legally protected through patent law. China is one of the 173 countries that signed the Paris Convention for the Protection of Industrial Property, which establishes a union for the protection of industrial property, including intellectual property.
Without delving too far into the specifics of the treaty, suffice to say that China’s patent law is very similar to that of the United States: “…protection is allowed for any new, original, ornamental design for an article of manufacture.”
This means that “Appearance Designs” (the category that fashion designs fall under) have to go through various steps that ascertain the originality and patentability of the design.
- Material Conditions: China applies the “Novelty Standard” which means that any prior use or publication of the design renders it un-patentable.
- Formal Conditions: this requires including drawings or photographs of the design, and explanations of the design itself, with the application.
- Examination: unlike the United States, examination is cursory and limits itself to ascertaining that the application was completed correctly.
The heart of the issues isn’t really whether or not your designs will be awarded a patent; it’s whether or not you’ll be able to enforce your rights if they’re infringed. When contentious cases arise between businesses, protecting your rights are usually straightforward, because copyright protection laws really do work well in that regard. When you’re trying to defend your rights from piracy, the task will prove to be infinitely more difficult — and extremely expensive. Pirates don’t operate within the law; they make a quick buck off your work and disappear. This makes enforcing your rights extremely arduous.
How do you defend yourself from piracy then? The best solution is prevention. Working with agents and manufacturers you can trust is your best defense against piracy of your designs, and save you the trouble of having to act after the fact. Experienced agents and manufacturers know how to sniff out untrustworthy managers that are willing to sell out clients in order to make a few dollars by exploiting other people’s work. It’s always better to use a skilled and practiced agency that can anticipate problems before they happen.