Your Chinese Factory Is Selling Your Design Before Your First Order Arrives: What to Do

A situation small brands describe again and again in public forums: you designed a product, sent the files to a factory in China, and before your first shipment arrives the same product is listed on Alibaba or AliExpress, sometimes cheaper than your own price. What can you do? It depends on three things: which rights you hold in China, what your contract with the factory says, and how well you can prove what happened and when. This guide sets out what to check, which evidence to secure first, which routes are open, and how to prevent it next time. It is general information; Chinese law, platform rules and the facts of each case decide the outcome.

First, work out which rights you actually have in China

• A Chinese trademark registration: if the factory sells under your brand and the brand is registered in China, you have a clear basis for platform complaints and enforcement. If it sells the same product without your brand, a trademark does not help.
• A Chinese design patent: protects the appearance of a product. It is often the strongest tool against copies, but it must normally be filed before the design is made public. One exception matters here: under Article 24 of the Patent Law, a disclosure by someone else without your consent does not destroy novelty if you file within six months of it. If the factory published your design without permission, a filing may still be possible, so act quickly and keep evidence that you did not consent.
• Copyright: protects original artwork, graphics, photos and works of applied art without registration; China and most other countries belong to the Berne Convention. A voluntary copyright registration in China gives you a certificate that platforms accept readily. Copyright does not protect purely functional features.
• Your contract: a supply agreement or an NNN agreement (non-disclosure, non-use, non-circumvention) can bind the factory even where no registered right exists. It works best when it is in Chinese, governed by Chinese law and enforceable in a court where the factory is located.
• Unfair competition: copying the distinctive packaging or decoration of a product that already has some influence in China can, in some cases, be pursued under the Anti-Unfair Competition Law.

These rights are not interchangeable. A trademark does not protect a product's shape, and a design patent does not protect a brand name.

Secure the evidence before you confront the factory

1. Your design history: original files with their metadata, sketches, dated versions, and proof of your own first publication, such as website or social media posts.
2. The sequence of events: emails, Alibaba chats and WeChat messages showing that you sent the design to this factory, and when. Export them now rather than relying on the platform keeping them.
3. The commercial record: purchase orders, invoices, payments, sample and mould fees, and anything that says who owns the moulds.
4. The listings: each URL, the seller's name and store page, price, photos and date. For use in court, capture them by notarisation or a recognised online evidence-preservation service, not only by screenshots.
5. A test purchase if you plan to sue or file a strong complaint, keeping the order record, payment and delivery.

Evidence gathered after the factory realises you are watching tends to be thinner: listings get renamed or moved to other stores.

Then choose a route

• Platform complaint: Alibaba's IP Protection Platform covers 1688, Taobao, Tmall and AliExpress; Amazon and other marketplaces have their own channels. You need a right the platform recognises, such as a trademark, design patent or copyright, and documents proving it. See Taking Down Counterfeits on Chinese and Cross-Border Marketplaces.
• Contract and commercial leverage: a demand letter based on the NNN or supply agreement. An outstanding balance, mould ownership or future orders often move faster than legal steps.
• Administrative complaint or lawsuit in China: realistic where you hold a Chinese right and know the factory's legal identity.
• Customs: a recorded Chinese trademark or design patent lets China Customs act against infringing exports. See China Customs IP Recordal.
• Your home market: rights you hold at home, such as registered designs, trademarks or copyright, can be used against imports and sales there, independently of what happens in China.

How to prevent it next time

1. Register before you share: your trademark in China, in Latin and Chinese forms, and for appearance-led products a Chinese design patent filed before the design is disclosed.
2. Sign an NNN agreement that fits China: in Chinese, governed by Chinese law, with jurisdiction in the factory's local court and a liquidated damages clause. A generic template does not fit every case.
3. Split production where you can, so that no single factory holds the complete design.
4. Put mould ownership in writing, and keep proof that you paid for the moulds.
5. Monitor marketplaces for your product images and names.

Frequently asked questions

The factory says it designed the product itself. How do I prove otherwise? With dated design files, the messages in which you sent them, and your earlier publication. That is why exporting chats early matters.

I have no Chinese registration at all. Is it too late? Not entirely. Copyright may cover artwork and photos; if the factory disclosed the design without your consent, the six-month window for a design patent may still be open; and your contract may be the main tool. File your trademark now in any case.

Can I simply withhold the balance I owe? That depends on your contract, and withholding payment can expose you to a claim. Take advice before you do it.

J&C Intellectual Property Agency, founded in 2008, is a CNIPA-recorded trademark agency and a member of the China Trademark Association. We handle trademark filings and China Customs recordals for foreign brands; see our customs recordal service.