Who owns the pattern? Design IP in crochet OEM programmes
Design IP in crochet OEM is the question of who owns the pattern, the technical drawing, the sealed sample and the colour reference once a project ends — and under Chinese law the default answer is the party who created them, not the party who paid, unless the contract says something different.
What is actually being owned
“The design” is not one asset. In a crochet programme it is usually six or seven separable things, and they can end up with different owners if nobody lists them. The pattern is the one buyers ask about and the one least often documented, because it lives as a chart in a workshop notebook rather than as a file in a shared drive.
| Asset | What it is in crochet terms | Who normally ends up holding it |
|---|---|---|
| Pattern / 版型 | The stitch-by-stitch working document: stitch counts per round, increases, hook size, assembly order | The workshop that developed it — almost always, unless assigned |
| Technical drawing / tech pack | Dimensioned views with gauge, yarn count and finishing notes | Whoever commissioned the drawing, if the contract says so |
| Gauge and tension record | The physical swatch and its measurement that make a reorder reproducible | Often nobody — which is why reorders drift |
| Colour reference | Pantone codes, approved dye-lot card, the standard the bulk is matched to | Usually the factory, as a production record |
| Sealed approved sample | The signed-off piece that settles every later argument | Should be held by both sides; frequently held by one |
| Product photography | Images shot for the buyer's listing or the factory's portfolio | Whoever paid the photographer — and the model release decides the rest |
| Tooling and printed parts | Custom labels, hangtags, embroidery files, eye moulds | Whoever paid for the tool; the artwork inside it is separate |
The practical consequence: a single sentence in a purchase order cannot settle all seven. Either the agreement names each asset and says who owns it, or the default rules fill the gaps — and the default rules are not generous to the buyer.
What the law defaults to when the contract is silent
Chinese law is not ambiguous here, which is what makes silence expensive rather than merely untidy.
Copyright
Article 19 of the Copyright Law of the PRC provides that for a commissioned work the ownership of copyright is agreed between the commissioning and commissioned parties; where the contract does not clearly provide for it, or where there is no contract at all, copyright belongs to the commissioned party — in an OEM programme, the factory. Article 3 recognises product design drawings and graphic works as protected categories, so a charted pattern or a dimensioned drawing is within reach of protection if it is original.
Two limits are worth knowing. First, only the economic rights listed in Article 10 (reproduction, adaptation, distribution, communication to the public and the rest) can be licensed or assigned; attribution, integrity and modification are personal rights and stay with the author. Second, protection follows originality, not labour: a shape that is purely functional, or one copied from an existing public design, is a weak claim however much work went into sampling it.
Design patent
Article 8 of the Patent Law applies the same logic to inventions and designs completed on commission: absent an agreement, the right to apply belongs to the party that completed the work. The term for a design patent is 15 years from the filing date for applications filed on or after 1 June 2021, and 10 years for earlier filings. Filing is first-to-file, so the question of who files is decided by speed as much as by intent.
Trademark and trade secret
A pattern is not a trademark, and trying to protect a soft shape as a three-dimensional mark is a long route with a low success rate. The trade-secret route is more useful in practice: the stitch recipe, the yarn source, the sequence of operations and the subcontractor list can all be protected as commercial secrets, provided reasonable secrecy measures exist — an NDA, access control, marking, and a record of who received what.
Where it goes wrong in practice
Four patterns account for most of the disputes, and all four are visible before the first sample ships.
- “We paid for the development, so we own it.” Payment buys goods and, at most, an implied licence to use the result for its intended purpose. It is not an assignment. Buyers discover this when they try to move the product to a second supplier and find they have no document to hand over.
- The pattern is never written down. The design exists as a finished sample and one person's memory. There is nothing to assign, nothing to hand to a new supplier, and nothing to put in front of a court. The fix is a deliverables clause, not a legal one.
- Exclusivity is assumed. Nothing in a standard purchase order stops the factory from selling the same shape to another buyer in another market. If exclusivity matters, it has to be written with a territory, a channel, a duration and a consequence when volume falls below an agreed level.
- The obligations stop at the factory gate. Work is distributed across a network of home workers; the NDA binds the entity that signed it and nobody downstream. Flow-down language plus a record of who holds which part of the pattern is the only workable control.
Five clauses that actually decide it
| # | Clause | What it must say |
|---|---|---|
| 1 | Background vs foreground IP | Background: what each side already owned and brings in (the factory's base patterns, the buyer's brand assets) stays with its owner and is licensed only for this project. Foreground: what is created for this project is named, and its owner is named. |
| 2 | Deliverables list, with formats | Not “the pattern” but: charted pattern PDF, gauge record with stitch counts, dimensioned drawing, colour card, sealed sample, editable source file if one exists. A deliverable that is not listed is a deliverable that does not exist. |
| 3 | Assignment or licence, and its scope | Assignment transfers ownership; a licence does not. If it is a licence, state exclusive or non-exclusive, territory, field of use, sublicensing and term. “All rights worldwide in perpetuity” is a price, not a default. |
| 4 | Exclusivity with a performance condition | Territory, channel, duration, and what happens if annual volume falls below an agreed figure. Exclusivity without a volume condition is a promise the factory cannot fund. |
| 5 | Exit: return, destruction and residual rights | On termination, what is returned or destroyed, what may be retained for legal or warranty purposes, and whether the factory may continue producing the same design for others. Silence here is how a design reappears two seasons later. |
Two supporting items are worth adding while the file is open. A credit line clause, because attribution cannot be assigned and a disagreement about it is easily avoided in advance. And a recordal step: registering the work at the Copyright Protection Center of China, or filing the design patent in the buyer's name, converts a contractual right into a certificate.
Third-party characters and licensed designs
When the design is not original to either party — a sports figure, a licensed character, a brand mascot — the ownership question is preceded by a permission question, and the two are often confused.
The buyer is the party who knows what rights it holds, so the buyer should warrant them in writing and supply the authorisation before sampling starts. A factory cannot assess whether a licence covers a particular territory, channel or volume, and should not be asked to. Two practical points follow. First, indemnity should run in the direction of whoever supplied the artwork. Second, a merchandising licence usually does not extend to the factory's own marketing, so a licensed piece should not appear in the factory's portfolio, on its website or at a trade fair without separate written permission — a rule that is easy to state and easy to break when a sample looks good.
Five questions worth asking any supplier, including us
- Will you sign a mutual NDA before I send the artwork, and does it bind your subcontractors?
- Does the quotation include a tech pack and a charted pattern that I keep, in a format I can hand to another supplier?
- If a design patent is filed, who files it and in whose name?
- What happens to the pattern and the tooling if I stop ordering?
- Can you show me your standard IP clause, redacted, before we reach the sampling stage?
A supplier who answers all five without hesitating has usually been asked before. The answers matter less than the fact that they exist in writing, because the whole point of an IP clause is that it is read on the worst day of the relationship rather than the best.
Frequently asked questions
If I pay for the samples, do I own the pattern?
No. Paying for samples buys the physical pieces, not the right in the design. Under Chinese copyright law a commissioned work belongs to the party who created it unless the contract says otherwise, so an invoice is not an assignment. If you want the pattern, the assignment has to be written into the agreement before the work starts, or added later as a signed variation.
Does a crochet pattern qualify for copyright in China?
Usually yes, though the category depends on how it is expressed. A charted stitch diagram or a product design drawing is generally treated as a graphic work; a written stitch-by-stitch instruction can be treated as a textual work. The test is originality, not effort. Registration is optional, but a registration certificate from the Copyright Protection Center of China is far easier to put in front of a court than a folder of emails.
Can the moral rights be transferred as well?
No. Attribution, integrity and the right to modify are personal rights under Chinese copyright law and cannot be assigned, whatever the contract says. What a contract can do is fix how credit is given, require prior written consent for changes, and set out what happens if the author's name is omitted. Buyers who need to rebrand a design should ask for a waiver of the right to modify in practice, not an assignment of it.
Who should file the design patent, and when?
Whoever intends to enforce it, and before the design is shown publicly. Chinese design patents are first-to-file, with a 15-year term from the filing date for applications filed on or after 1 June 2021. If the factory files first, the factory is the patentee, and recovering the right afterwards is a dispute rather than a formality.
Is an NDA enough to protect the design?
No, and this is the most common confusion. An NDA stops the other side from disclosing or using your information; it does not move ownership. You need both instruments: confidentiality for the information, and assignment or an exclusive licence for the rights. An NDA alone leaves the factory as the copyright owner of anything it created.
What happens when production is subcontracted to home workers?
The confidentiality and IP obligations have to flow down in writing, and the practical control matters as much as the clause. There is a real difference between one coordinator holding a complete chart and thirty households each holding a single motif. Where the full pattern has to be distributed, keep a signed receipt per household and a record of who holds which page.
Starting a programme and unsure who ends up with what? We work with a 30,000+ artisan network across four Chinese provinces, 8,000+ verified models and TüV Rheinland verification, and we would rather settle the deliverables list at quotation stage than at the end of a reorder. Ask us for the IP and NDA position before sampling, or start from the nine inputs we need before quoting, spec-to-bulk tolerance and our OEM services.