Flattery Comes Cheap

How to Protect the Interior Design of Shops in China

In order to stand out from the crowd, many businesses, shops and restaurants have carefully designed and developed their customer-facing outlets: if you’ve ever been to an Apple store or a Luckin Coffee shop, you will easily recognise another of their outlets. Meanwhile, boutique stores or bars may carve a niche for themselves by using décor to create a customer experience that wins them loyal patrons. The China IPR SME Helpdesk outlines the protection available to enterprises, both big and small, if they find the interior design of a competitor looks a little too much like their own.  

When Brent Hoberman, founder of online interior design and furniture store Mydeco.com, made a trip to China, one man was particularly keen to meet him. When they met, the man explained that he wanted to launch a web business but had no idea how to do it until he found Mydeco.com and copied it. He was eager to express his appreciation personally to Hoberman.

In 2011, the residents of Kunming, the capital of Yunnan Province in China’s southwest, were delighted to find an IKEA shop had opened up there. The newly-owned store was an enormous, multi-level shop selling modern self-assembly furniture similar to that in other IKEA stores. The building was even decked out in the distinctive blue and yellow colours of the Swedish brand. The Kunming residents soon realised the store was a fake, but continued to shop there; they have little choice, as the closest real IKEA is in Chongqing, 940 kilometres away.

Store layouts, colours and designs become synonymous with a brand, so imitation of a store interior can be very damaging to companies by taking customers away from them or creating negative impressions of the brand. At times, it can be extremely difficult to separate the real from the fake.

There is a saying in China, 山高皇帝远 (shāngāo huángdìyuǎn), which means “the mountains are high and the emperor is far away”, This perfectly encapsulates the reason why counterfeiting still happens in China, particularly in more remote places such as Kunming.

There are three types of intellectual property protection relating to the interior design of shops/premises available in China: trade dress, copyright and design patents.

Trade dress covers the theme and elements of the interior design of a commercial space. It must be unique with distinctive characteristics so as to be able to signify the source to consumers. It is contentious as to whether a design is source-designating or just decorative, as this is usually determined by the reaction of customers. So, if a theme is not distinctive, then it is necessary to show that the interior design has become distinctive in the minds of consumers who associate it with the source. China’s Anti-unfair Competition Law provides some protection for unregistered trade dress, as well as trademarks, packaging and trade secrets.

Copyright covers instructions, architectural designs, and industrial and graphic designs. Unlike patent and trademark protection, copyrighted works do not require registration for protection. China grants protection to copyright owners from countries belonging to international copyright conventions of which China is a member. However, copyright owners may also wish to voluntarily register with China’s National Copyright Administration to establish evidence of ownership, should enforcement action become necessary.

Design patents cover ornamental designs of functional items, such as furniture. Unlike in Europe, no protection is offered to unregistered designs in China; it is a first-to-file jurisdiction. On top of that, designs must be novel to be eligible for registration. This means the design cannot have been disclosed to the public before the application is filed, otherwise the application or patent could be invalidated later. Therefore, if you plan to apply for a design patent in China, make sure your design is treated as a trade secret and not made public in any other country before the application has been made in China.

Despite imitation being the sincerest form of flattery, the number of counterfeit shops in China is diminishing and there is greater emphasis on the need for creativity and authenticity. Chinese consumers are more discerning and affluent than ever before, and want to display these attributes by buying genuine, not fake, products. This trend at least should inspire more confidence in European businesses thinking about entering China, and help to reassure them that, if they put in place the right intellectual property strategy, then it more often than not will pay off.

The China IPR SME Helpdesk supports small and medium sized enterprises (SMEs) from European Union (EU) member states to protect and enforce their Intellectual Property Rights (IPR) in or relating to China, Hong Kong, Macao and Taiwan, through the provision of free information and services. The Helpdesk provides jargon-free, first-line, confidential advice on intellectual property and related issues, along with training events, materials and online resources. Individual SMEs and SME intermediaries can submit their IPR queries via email (question@china-iprhelpdesk.eu) and gain access to a panel of experts, in order to receive free and confidential first-line advice within 3 working days.

The China IPR SME Helpdesk is an initiative by the European Union

To learn more about the China IPR SME Helpdesk and any aspect of intellectual property rights in China, please visit our online portal at http://www.ipr-hub.eu/.