Protecting your design when you manufacture in China

If you have come up with a new shape for a grill basket or a better skewer handle, the moment you send drawings to a factory you are trusting it with your idea. This guide covers the three tools a small Australian brand usually reaches for: an NNN agreement with the factory, an Australian registered design, and filing in China itself.

This is general information, not legal advice. IP law is technical, the deadlines are unforgiving, and what suits your product depends on details this guide cannot see. Before you share a new design or file anything, talk to an IP lawyer, or a registered patent attorney or trade marks attorney, ideally one who works with China.

Start with what you are protecting

• The look of the product (its shape, pattern or decoration): an Australian registered design, and a design patent in China.
• Your brand name and logo: a trade mark. A design right does not protect the brand.
• How the product works: a patent, which is outside this guide.
• Drawings, specs, prices and know-how: contracts and keeping things confidential.
• Most private label BBQ accessories are products the factory already makes, with your logo and packaging. A design you did not create, or one that is already public, cannot be registered as yours. Protection matters most when you have developed something new.

Keep it secret until you file

• IP Australia's advice is to keep a design secret until you have applied. Even posting a picture on social media can make it hard to claim and enforce a design right.
• If you need to discuss it, have the other side sign a non-disclosure agreement first. IP Australia lists manufacturers among the people to ask, and suggests stating the purpose (getting a quote, say) and marking what you share as confidential.
• Share only what the factory needs to quote and sample, and keep a dated record of what you sent and when.
• IP Australia warns against approaching manufacturers in China, exhibiting at trade fairs or offering goods for sale there until you have a clear IP plan for China.

NNN agreements with the factory

• NNN stands for non-disclosure, non-use and non-circumvention. Non-disclosure stops the factory sharing your confidential information. Non-use stops it making your product, or anything similar, for anyone but you. The European Commission's China IP SME Helpdesk describes non-circumvention as stopping the factory getting around the protections you build into the product.
• Why a plain Western NDA is weak in China: the Helpdesk explains that Chinese law protects confidential information only if it is a trade secret or the contract spells it out, and that many products are not covered by any registered right at all. An NDA only stops disclosure; it does not stop the factory using what it learned.
• Write it for China. IP Australia says a modified Australian contract may not be enforceable there. The US Patent and Trademark Office's China toolkit says NDAs should be governed by Chinese law and written in Chinese. If you use a two-language version, IP Australia notes a court will usually rely on the Chinese text unless the contract says otherwise.
• Name the right company. Use the factory's exact Chinese name and unified social credit identifier, and have the agreement stamped with its company seal (chop). IP Australia says the contract can be void if it is not clear the signatory acted for the company.
• Sign with the company that makes your product. If you buy through a trading company, find out who the factory is; see trading company vs factory.
• Think about where you would enforce it. Practitioners point to a Chinese court with jurisdiction over the factory, where its assets are. China's Civil Code lets parties agree liquidated damages (a set amount payable on breach), which a court can adjust if it is far from the real loss, so the figure should be realistic, not inflated.
• Sign it before you send drawings, not after the sample arrives.
• Put the rest in the manufacturing agreement. IP Australia's list includes who owns the IP, non-competition and non-circumvention, confidentiality, ownership of moulds and tooling, quality, inspections, termination and how disputes are resolved.

Australian registered designs

• What it protects: the overall appearance of a product. Under the Designs Act 2003, visual features include shape, configuration, pattern and ornamentation. It does not cover the brand name or logo, how the product works, the materials or the size.
• The test: a design must be new and distinctive compared with the prior art base, which includes designs publicly used in Australia and designs published anywhere in the world.
• Two parts. First registration, which is a formalities check that IP Australia says usually takes eight weeks. Second certification, an examination against the new and distinctive test, including a worldwide search. IP Australia is clear that a registered design is not an enforceable right: you must register and certify it before you can take action against a copier.
• How long it lasts: five years from filing, and you can renew once for another five, so ten years at most.
• What it costs, as IP Australia publishes it (online fees, read 2 November 2026; the page does not say whether GST applies): A$200 to file the first design, A$150 for each further design in the same application, A$500 for the owner to request examination, and A$400 to renew. Postal fees are higher, and attorney fees are on top.
• A statement of newness and distinctiveness is optional. IP Australia warns it can narrow your design by accident and generally cannot be changed after registration.
• Your design is published, images included, once it is registered. Keep that in mind for China, below.

The 12-month grace period, and its limits

• Since 10 March 2022, IP Australia lets you file within 12 months of first disclosing your design and still get a design right in Australia.
• It is a safety net, not a plan. IP Australia warns that if someone else starts using a substantially similar design during that time, they may be protected by the prior use exemption even after you are registered, and its advice is to file as soon as possible.
• It does not cover a design already published on the Australian Register of Designs or a similar overseas design database.
• It is Australian only. China has no general grace period of this kind, so a disclosure that is fine in Australia can stop you getting a design patent in China.

China basics, at a high level

• An Australian registration protects you only in Australia. IP Australia puts it plainly: IP rights are territorial, and there is no worldwide IP right.
• The China National Intellectual Property Administration (CNIPA) handles patents, including design patents, and trade marks.
• Design patents protect the shape, pattern or colour of a whole product or, since 1 June 2021, part of one. Those filed from that date last 15 years from filing.
• They are granted after a preliminary examination, not the full substantive examination an invention patent gets. The examiner can still take earlier designs into account and refuse one that is obviously not new or not distinctive, but there is no full novelty search. That is quick for you, and just as quick for anyone who files your design first.
• Novelty is absolute. A design known to the public anywhere before the filing date is not new. IP Australia says that includes sales, advertising and the publication of an Australian design application, with rare exceptions within six months. China's Patent Law limits those exceptions to narrow cases such as a Chinese government recognised exhibition or a disclosure made without your consent; posting your own photos or selling the product is not one of them.
• Priority: under the Paris Convention, if you file in China within six months of your Australian filing, the Chinese application can keep your Australian date. Because IP Australia publishes the images at registration, do not let that window lapse.
• China joined the Hague international design system in 2022, but Australia is not a member, so a typical Australian business files directly with CNIPA through a Chinese patent agent.
• Trade marks: China is first to file. IP Australia says the owner of a brand in China is whoever holds the earliest registration, not whoever first used it. Register early, even if you only manufacture there, consider a Chinese-character version, and use a local agent.
• Once your rights are registered in China, they can be recorded with China customs, which can then stop suspected copies being exported. Only rights registered in China can be recorded.
• Ask your attorney or agent for current CNIPA fees and timing; this guide does not quote them.

Decision rules

• If the product is the factory's existing design with your logo, there is no design right for you to register. Put your effort into the trade mark, in Australia and China, and a contract that covers your artwork and packaging.
• If you have created a new shape, get an NNN signed before you share it, and talk to an attorney about an Australian design and a China design patent before anything goes public.
• If you file in Australia, decide about China within the six-month priority window.
• If you pay for moulds or tooling, put in writing that you own them.
• If a supplier will not sign a Chinese-language agreement under its company seal, think hard before sending drawings.

Common mistakes

• Relying on an English-only NDA copied from an Australian template.
• Posting a new design on social media or a crowdfunding page before filing.
• Assuming an Australian registration protects you in China.
• Registering a design but never certifying it, then finding you cannot enforce it.
• Letting the six-month priority window close after the Australian images are published.
• Signing with a trading company while a factory you have never named holds the moulds.
• Treating this guide as legal advice.

Next step

Find out who actually makes your product with trading company vs factory, check the company with check a supplier before a deposit, then speak to an IP lawyer or attorney before you send the drawings.

Common questions