Chinese Fashion Designers Confront Persistent Challenges in Protecting Designs from Knockoffs

In recent decades, trademark squatting has been a prevalent issue for foreign brands operating in China, largely due to the country’s trademark protection system prioritizing the first party to register a trademark. If no party registers, rights are granted to whoever can prove first use during disputes. This framework has often disadvantaged those who used a name first but failed to register it promptly.

Currently, the primary concern for Chinese designers has shifted to protecting the clothing designs themselves from plagiarism. A survey conducted by the China Fashion Industry Intellectual Property Conference last year revealed that 60 percent of designer brands reported having been plagiarized, while 25 percent were aware of counterfeit versions of their work circulating in the market.

China’s legal protections for fashion brands derive from multiple sources: copyright law, trademark law, patent law, and anti-unfair competition law. However, both legal professionals and brands acknowledge that these protections remain limited and outdated in addressing the realities of design infringement.

Luo Yucheng, founder of the Chinese designer brand Calvinluo, which showcased at Paris Fashion Week in 2020, described the various types of infringements his brand has encountered. These include products that use Calvinluo’s designs without displaying its label, products that bear the Calvinluo label but were neither designed nor produced by the brand, and products with similar styles and pricing that mislead consumers into believing they are genuine Calvinluo items.

Lei Liushu, co-founder of the designer label Shushu/Tong, has faced comparable issues. She noted instances where internet influencers wore counterfeit versions of their designs, mistakenly tagging the brand on social media platforms like Weibo. Such imitation spikes are common when a design gains popularity, as e-commerce platforms become flooded with lower-priced copies of varying quality.

Chen Xuzhi, founder of the label Xu Zhi, emphasized that the problem extends beyond financial loss. He stated, “Behind every piece of clothing that moves someone is a designer’s devotion to work and deep thinking. To speak a bit more seriously, [an imitation] first of all tramples on the original design; secondly, it takes profit from the brand that should be getting it.”

Designers can seek protection by applying for design patents in China. However, the patent application process, which takes six to eight months and costs approximately RMB 500 (around $70), conflicts with the typical fashion cycle, which often lasts only about four months. Luo Yucheng highlighted this challenge, saying, “Because the clothing cycle basically lasts a quarter, maybe four months, having to go through a six-month process is very challenging for us.”

To address these challenges, Shanghai-based creative platform Tube Showroom, under DIA Creative, organized the “Roundtable Discussion on Intellectual Property Protection for Independent Designer Brands.” Zhang Yanwei, the forum’s resident guest lawyer, recommended that brands apply for patents on classic styles they frequently revisit, as well as on commonly used fabrics, decorations, and other design elements to safeguard future creations.

Comparatively, France’s Intellectual Property Code includes specific provisions protecting “creations of the seasonal industries of dress and articles of fashion,” granting automatic protection. China’s copyright law similarly adopts an automatic protection system but limits it primarily to 2D clothing design drawings. When designs transition into 3D prototypes or finished products, separate protection is required, necessitating detailed legal analysis of the 3D item.

This legal ambiguity often results in disputes where alleged infringers claim they only referenced a design rather than copied it outright. Without legal assistance, designers face a difficult path to enforcing their rights. Huang Zhengxue, a Shanghai-based lawyer with 16 years of IP experience, suggested that protecting clothing designs by isolating constituent elements—such as specific patterns, cartoon characters, or artistic text—can effectively safeguard originality.

Another significant hurdle is the disproportionate cost of enforcing IP rights compared to the relatively low penalties for infringement. Courts may award compensation ranging from a few hundred to a few thousand RMB, which often falls short of covering legal fees and pales in comparison to the infringer’s profits.

Chen Wenjun of Long’an Law Firm’s Shanghai branch explained that determining infringers’ profits and rights holders’ losses is challenging in clothing infringement cases. Despite a statutory maximum compensation of RMB 500,000 (approximately $70,400), courts typically calculate damages based on the number of infringed items, frequently resulting in compensation insufficient to cover attorney fees.

In response, some Chinese designers have turned to social media platforms such as Weibo and WeChat to publicly expose infringement. However, lawyer Zhang Yanwei advises designers to remain calm, meticulously collect and preserve evidence, and seek professional legal assistance promptly to avoid missing critical opportunities and prevent accusations of slander.

Zhang outlined a tiered approach to rights protection: initial investigation and evidence collection, followed by platform complaints, company or lawyer letters, administrative complaints, criminal reports, and, if necessary, civil litigation.

She recommends tailoring responses based on the infringer’s sales volume and sales channel. For low-volume online infringers, submitting platform complaints to remove listings or impose penalties is advised. For low-volume offline infringers, sending cease-and-desist letters may be appropriate. For high-volume infringers with identifiable warehouses or factories, brands can pursue platform complaints, administrative complaints, or criminal reports. If locating production sites is difficult, the process begins with platform complaints and lawyer letters, reserving civil lawsuits as a last resort if negotiations fail.

As Chinese designers continue to innovate, the evolving landscape of intellectual property protection remains a critical battleground in preserving creativity and commercial viability within the country’s dynamic fashion industry.