Like the United States, China offers protection for 2D and 3D designs of products and packaging, which is often known by U.S. consumers and practitioners as “trade dress.” This four-part miniseries of posts provides a birds-eye view of protections available in China for two-dimensional (2D) and three-dimensional (3D) design elements of products or packaging under trademark, copyright, design patent, and anti-unfair competition laws. It focuses on the similarities and dissimilarities of different aspects of intellectual property (IP) law in China and how they interact with each other.

It is worth noting that there is no clear border between different types of IP rights. When a product or packaging design belongs to key IP or business assets, such as the classic Coca-Cola contour bottle design, the best practice is to build a multilayered IP portfolio that removes blind spots and gaps in IP protection.

Before diving into details, the chart below illustrates how 2D and 3D designs are protected as different IP rights in China.

Protection of 2D Designs Protection of 3D Designs

Trademark (symbols, designs)



Trademark (3D designs)

Trademark (color combinations)


Copyright (written works, photographic works, graphic works, or even works of fine art, depending on the nature of the design elements)


Copyright (works of applied art)


Design Patent (overall design; partial claiming)


Design Patent (overall design; partial claiming)

Unfair Competition (outside protection of trademark, copyright, and design patent


Anti-unfair Competition (outside protection of trademark, copyright, and design patent)

Part I. Trademark

A word, string of letters, symbol, design, color combination, sound, or any combination thereof that distinguishes the source of the goods and services of one party from those of others can be registered as a trademark in China.

A symbol or design is generally eligible for trademark registration if it can function as a source identifier of goods and services, is not similar to a prior mark or in conflict with other prior rights of a third party, and is not otherwise prohibited by trademark or other laws in China.

A color combination is presumed to lack inherent distinctiveness based on the new Guidelines for Trademark Examination and Trial enacted by the Chinese National Intellectual Property Administration (CNIPA), effective January 1, 2022.  Therefore, a color combination cannot function as a trademark unless it has acquired distinctiveness through extensive use and promotion in mainland China. Single colors are neither recognized nor registerable as trademarks in China. The CNIPA provided the following two examples of registered color combination marks in the aforesaid Guidelines.

Registered Color Combination Mark Actual Use of the Color Combination Mark

Goods: batteries

Services: Gas station

To be registered as a trademark, a 3D design must possess non-functional design elements that are prominent and the source indicator of goods and services, besides meeting the requirement of inherent or acquired distinctiveness. The CNIPA provides the following example in the new Guidelines for Trademark Examination and Trial: a toothbrush features a round bottom that cannot be registered as a 3D mark because the round bottom was designed to prevent the toothbrush from falling and getting contaminated. In other words, the design element is functional.

The most famous 3D mark in China is Ferrero S.PA.’s (“Ferrero”) chocolate packaging, which brought the protection of 3D marks to the attention of mainstream media and the general public. Back in 2005, the People’s Supreme Court (“SPC”) ruled in favor of Ferrero in the “Ferrero SPA v. Montresor Company” regarding an unfair competition case based on the finding that Ferrero’s chocolate packaging trade dress consisting of a 3D ball shaped chocolate wrapped in  gold foil, with a white sticker on top of the chocolate and a brown and gold striped paper cup bottom, was distinctive and had become well-known among Chinese consumers. The defendant, a Chinese chocolate maker, used a similar packaging design to produce and sell TRESOR DORE branded chocolates, which the SPC held were likely to cause consumer confusion.

Ferrero’s Products Montresor’s Products

However, the SPC’s ruling in 2005 was not based on trademark infringement because Ferrero had not yet obtained a registration for the trade dress as a 3D mark. Ferrero filed a 3D mark in China in 2002 via the international trademark registration system known as the Madrid System, but the application was refused by both the Chinese Trademark Office (which was later replaced by the CNIPA) and its Review and Appeal Board. The refusals were eventually reversed by Beijing’s First Intermediate Court in late 2007, and Ferrero’s 3D mark was consequently registered.

Unlike the U.S., China is a strict “first-to-file” country and provides little to no protection for unregistered trademarks. A registration certificate is proof of both ownership and trademark rights, which is always required in enforcement actions and is also the strongest form of evidence in civil litigation. With trademark registration, China customs can seize infringing goods manufactured in and exported from China.

Armed with the registration of the 3D mark, Ferrero went after another Chinese copycat company called Gold Monkey in 2013. Instead of civil litigation, Ferrero filed an administrative complaint with the Administration for Industry and Commerce in Shanghai (“Shanghai AIC)”, whose functions were assumed by the Shanghai Administration for Market Regulation (“Shanghai AMR”) in 2018, a law enforcement agency overseeing the business operation and consumer protection, based on trademark infringement. Shanghai AIC confiscated dozens of inventories, ordered Gold Monkey to cease infringement immediately, and fined the infringer nearly RMB 200,000 (around USD 30,769). An administrative enforcement action costs one-tenth or less of the cost of civil litigation, and the agencies often act within weeks or even days upon receiving a complaint.

Ferrero’s Products Gold Monkey’s Products

The Quarles & Brady design rights legal team is nationally-recognized for its extensive knowledge and practice experience in this complex and important field. For questions about this article or on how to incorporate design-related legal rights into your intellectual property portfolio, please contact the author(s) of this post directly or send a message to the team via our Contact page.