Fashion Design Protection Under China’s Anti-Unfair Competition Law

With the rapid development of China’s fashion industry, design innovation has become a key resource for brand competition. However, due to the structural limitations of the traditional intellectual property system—such as constraints on protected subject matter, the threshold for protection, and the method of acquiring rights—fashion design has long remained in a relatively weak position in terms of legal protection. Under the existing institutional framework, China mainly offers fragmented protection for fashion design through four pathways, including: the Copyright Law’s protection of artistic patterns and specific forms of artistic expression; the Patent Law, especially the design patent regime, which protects industrially reproducible external design forms; the Trademark Law’s protection of source-identifying brand-specific appearance; and the Anti-Unfair Competition Law’s regulation of overall style, visual systems, and parasitic imitation conduct. In recent years, among these four systems, the Anti-Unfair Competition Law has played an increasingly central role in addressing protection gaps left by traditional intellectual property regimes, given its open structure and conduct-regulation characteristics. Against the backdrop of the fashion industry’s accelerating evolution toward digitization and virtualization, the Anti-Unfair Competition Law will continue to serve as a key pillar of China’s fashion design protection system and may in the future undertake a more cohesive protective function.

This article focuses on Articles 2 and 7 of the Anti-Unfair Competition Law. Through a systematic examination of their specific boundaries of application, judicial evaluation standards, typical reasoning structures in court decisions, and relevant case analyses, it reveals their distinctive value in regulating overall style imitation, systemic following, parasitic business conduct, and emerging sectors such as digital fashion.

I. The Institutional Position and Application Logic of the Anti-Unfair Competition Law in the Protection of Fashion Design
At a time when the existing intellectual property system is unable to provide comprehensive protection for fashion design, the Anti-Unfair Competition Law—through its regulatory role over business conduct and market order—has become an indispensable institutional resource for safeguarding fashion design. Unlike rights-based systems such as copyright, patents, and trademarks, the Anti-Unfair Competition Law does not require the explicit definition of a protected subject matter; instead, it takes the maintenance of fair competition order and the protection of the legitimate interests of business operators as its core goals. This structural framework is inherently open and flexible, enabling it to cover a vast range of fashion design achievements that are difficult to incorporate into traditional IP frameworks but have significant market value.
At the legislative level, protection of fashion design under the Anti-Unfair Competition Law can generally be divided into two pathways:
1. The “confusion conduct” rule under Article 7, which mainly regulates imitation of product get-up that has attained a certain degree of influence;
2. The residual clause under Article 2, which addresses imitative and parasitic conduct that cannot be clearly categorized under specific provisions but nevertheless harms competitive order or unjustly seizes the competitive advantages of others.
Together, these two provisions constitute a dual system of “typified regulation” and “open-ended regulation,” designed to address the widespread issues of overall style imitation, series design appropriation, and commercial image duplication within the fashion industry.
II. The Article 7 Pathway: A Protection Mechanism for Fashion Design Centered on “Product Get-Up” 
1. Legal Basis and Institutional Function
Article 7, paragraphs 1 and 4 of the Anti-Unfair Competition Law provide: “Business operators shall not engage in the following confusing acts that mislead others into believing that their goods are those of another party or that they have a particular connection with another party, including: unauthorized use of a name, packaging, or get-up of another party’s goods that has attained a certain influence, or marks that are identical or similar thereto; as well as other confusing acts sufficient to mislead others into believing that the goods are those of another party or that there is a particular connection with another party.”
As a regulatory clause on confusing conduct, Article 7 establishes a typified protection rule for product get-up that has attained a certain degree of influence. Its institutional function lies in maintaining the order of source identification in the market and preventing business operators from misleading consumers or obtaining unfair competitive advantages by imitating others’ distinctive external styles. In the context of the fashion industry, the scope of “product get-up” extends beyond traditional notions of packaging and instead encompasses a wide variety of visual expression forms, often including:
1)	The overall visual system formed by the structure, pattern, and color relationships of a fashion collection;2)	The spatial image created by store displays, window design, display props, and lighting layout;3)	The unified visual style of brand manuals, e-commerce pages, or promotional visuals;4)	A stable combination of patterns, color schemes, or silhouettes with source-identifying qualities (before becoming trademarks or design patents).
Thus, in the fashion industry, Article 7 constructs a source-identifying system that takes “distinctive styles” and “visual systems” as its objects of protection—fundamentally different from the copyright and patent regimes that center on protected works or points of innovation.
2. Criteria for Determining “Having Attained a Certain Influence”
According to judicial practice, “having attained a certain influence” is the core prerequisite for applying Article 7. Its purpose is to determine whether the visual get-up possesses market significance sufficient to guide consumer identification of source. Courts generally consider the following factors:
1)	Duration and scope of commercial use;2)	Sales volume, market share, and the level of promotional investment;3)	Actual public recognition of the get-up and its distinctiveness;4)	Whether the visual elements possess uniqueness and stability.
3. Application Value and Limitations of Article 7 in the Fashion Industry
1) Application Value
Article 7 is particularly suited to protecting fashion design outcomes that are strongly tied to source identification, including:
a)	Style systems within a collection that have achieved market recognition;b)	Brand store interior decoration and display styles;c)	Visual systems of e-commerce pages, brand manuals, etc.;d)	Silhouettes or color combinations with stable source-identifying significance in market practice.
Its institutional advantage lies in its ability to protect overall visual styles and commercial appearance systems, thereby compensating for the insufficiency of copyright and patents in protecting “non-fixed expressions” and “style systems.”
2) Institutional Limitations
However, Article 7 has structural limitations, such as:
a)	The requirement of “having attained a certain influence,” which weakens early-stage protection for new brands or new collections;b)	Its emphasis on “likelihood of confusion,” which makes it inapplicable to imitation that does not intend to confuse but still unfairly appropriates another’s competitive advantages.
This explains why Article 2 (the residual clause) has become increasingly important in judicial practice. Unlike Article 7, Article 2 can regulate systemic imitation and parasitic competition without requiring confusion or pre-existing market influence, forming a complementary system of protection.
III. The Article 2 Pathway: The Expansive Regulatory Mechanism of the Residual Clause in Fashion Design Protection
Compared with Article 7—which centers on “confusion” and “product get-up with a certain influence”—the institutional function of Article 2 of the Anti-Unfair Competition Law is more open and expansive. Article 2, with its fundamental requirements of “maintaining fair competition order” and “observing business ethics,” provides judicial authorities with the institutional space to regulate emerging unfair competition behaviors. It is particularly suited to atypical objects not covered by traditional intellectual property regimes or Article 7. As the fashion industry evolves toward diversification, digitalization, and systemization, Article 2 has become a key tool in regulating overall imitation, style appropriation, and parasitic business conduct.
1. Institutional Positioning
Article 2 was originally viewed as a supplementary clause that applied only when other provisions could not cover the conduct at issue. However, with the proliferation of novel competition behaviors—especially in highly stylized industries such as fashion, interior design, and digital visual design—the significance of Article 2 has expanded dramatically. The text of the provision emphasizes that business operators must follow the principles of good faith and commercial ethics. Its focus lies in regulating conduct that disrupts fair competition order, rather than defining specific subject matters of rights. This allows courts to go beyond the traditional “work–design–mark” framework and assess imitation conduct from the perspective of competitive harm. This is crucial for fashion design that cannot meet the thresholds of copyright, patents, or trademarks. In other words, Article 2 centers on the improper nature of the conduct, rather than the existence of a protectable right, making it the most flexible institutional foundation for the protection of fashion design.
2. Three Typical Judicial Scenarios for Applying Article 2
Judicial authorities have gradually reached a consensus: when imitation does not constitute confusion and does not violate traditional intellectual property law, but exhibits obvious parasitic, dependent, or market-disruptive characteristics, Article 2 should apply. These scenarios can be categorized as follows:
1) Designs that have not yet attained “market influence” but are subjected to high-degree imitationThis situation commonly involves independent designer brands, newly established labels, or new seasonal collections. Due to the lack of “influence,” these designs cannot meet the threshold of Article 7, but rapid imitation by others—whether of individual items or entire series—can significantly undermine their competitive capabilities.
2) Systemic replication of overall style and visual system (style appropriation)In the fashion industry, “style systems” often hold greater recognition value than individual products. This includes elements such as:
a)	photography style in brand lookbooks,b)	model styling and makeup,c)	color systems,d)	page layout,e)	merchandising and display methods.
These systemic styles do not necessarily constitute “get-up,” nor do they fall within the scope of “fixed expression” under copyright law.
3) Protection gaps in emerging business models: digital fashion, AI-generated designs, etc.
With the rise of digital fashion, virtual garments, and AI-generated imagery, traditional rights regimes struggle to cover expressions such as algorithm-generated artworks, virtual clothing textures, and digital display environments. Article 2 has become the primary mechanism for protection in these fields due to its open-ended structure.
3. Judicial Evaluation Method
Currently, courts review Article 2 cases mainly through the following three dimensions:
1)	Whether the conduct is “improper” or violates commercial ethics, such as systemic imitation, parasitic business conduct, or free-riding;2)	Whether the conduct unjustly obtains competitive advantages, such as shortening the R&D cycle, reducing design costs, or copying brand style systems;3)	Whether the conduct harms others’ legitimate interests or disrupts competitive order, including diluting brand value, reducing innovation incentives, or increasing market confusion risks.
Together, these three dimensions make Article 2 operationally feasible and provide a stable judicial pathway for the protection of fashion design.
4. Institutional Advantages of Article 2 in the Fashion Industry
The value of Article 2 in fashion design protection lies primarily in:
1.	No reliance on “market influence”, making it especially suitable for new brands, niche designer labels, and digital fashion requiring rapid protection;2.	Policy orientation toward protecting design innovation and deterring parasitic competition, which aligns with the industry’s characteristics of rapid iteration, high imitation rates, and significant upfront investment;Functioning as a flexible regulatory supplement, creating a multi-dimensional protection mechanism encompassing systemic, stylistic, and conduct-based regulation.
IV. Case Analysis
(2021) Yue 0192 Minchu No. 11888 – Guangzhou Aibo v. Hangzhou Laizhe
In the case of Guangzhou Aibo v. Hangzhou Laizhe, the Guangzhou Internet Court conducted extensive and systematic reasoning regarding the defendant’s large-scale imitation of 99 clothing designs belonging to the plaintiff. The court fully articulated the doctrinal basis supporting the plaintiff’s claims under Article 6 (note: at the time of adjudication, Article 6 of the 2017 Anti-Unfair Competition Law corresponds to Article 7 of the 2025 Anti-Unfair Competition Law) and Article 2 of the Anti-Unfair Competition Law, and on that basis held that the defendant, Hangzhou Laizhe, had engaged in unfair competition.
1. Case Background and Issues in Dispute
The plaintiff, Guangzhou Aibo, is a well-known fashion brand that has long operated with stable stylistic orientations such as “minimalist European-American style” and “lady-gentleman style,” and has a substantial online presence. The defendant, Hangzhou Laizhe, sold dozens of clothing items on its e-commerce store “Huayi Flagship Shop” that the plaintiff alleged were highly consistent with its new seasonal designs, with some designs being nearly identical in silhouette, color coordination, and photography style. According to the judgment, nearly one hundred clothing items were involved, the infringing conduct lasted three years, and total sales reached RMB 3 million.
The court found that the core issues included: whether these clothing designs could be regarded as objects regulated by Article 6(4) (confusing conduct) of the Anti-Unfair Competition Law; and whether, if the designs did not constitute “works” under copyright law, their overall imitation could nonetheless be regulated under Article 2 or Article 6.
2. Court’s Reasoning and Judgment
The Guangzhou Internet Court’s reasoning proceeded from four key dimensions, providing clear answers.
1) Distinguishing Copyright Protection and Anti-Unfair Competition Protection as Protecting Different Legal InterestsThe court first addressed the defendant’s argument that “the same facts cannot simultaneously give rise to copyright infringement and unfair competition claims.” The court held that the plaintiff asserted copyright protection over artistic patterns appearing on the garments, while separately asserting unfair competition claims regarding the large-scale imitation of clothing designs. These two claims concern different subject matters and protect different legal interests, and thus there was no issue of “duplicative claims.” As long as the imitation of 99 designs “indeed disrupts market competition order and violates the principles of good faith and commercial ethics,” it is necessary to evaluate the conduct under the Anti-Unfair Competition Law.The court’s approach clarifies the division of functions and complementary relationship between the Anti-Unfair Competition Law and intellectual property law. The court did not treat the Anti-Unfair Competition Law as a mere “appendage” of intellectual property, but rather recognized its independent role in regulating conduct itself. This preserves institutional space for protecting fashion design when it does not meet the thresholds of copyright or patent law—an important point for jurisprudential coherence.
2) Interpreting Article 6(4) as a Residual Clause for “Overall Confusing Conduct”
In response to the defendant's argument that Article 6(4) only applies to confusion involving business identifiers, the court traced the provision’s legislative origin. Article 6 derives from Article 10(2) of the Paris Convention, which regulates “all acts of such a nature as to create confusion by any means whatever with the establishment, the goods, or the industrial or commercial activities of a competitor,” and is not limited to imitation of business identifiers.Based on the structure of Article 6, the court held:
a)	The first three subparagraphs regulate traditional business identifiers such as unregistered trademarks, trade names, and brand names that have attained a certain influence;b)	“Composite acts of imitation involving multiple elements leading to overall confusion” can be included within Article 6(4) as a residual clause.
Judicial Interpretation Article 13 also does not exclude recognition of overall confusing conduct. Therefore, the defendant’s argument that the plaintiff lacked rights in a business identifier was rejected, and the plaintiff was allowed to rely on Article 6(4) as a cause of action.This interpretive approach effectively brings a “collection’s overall style” within the scope of Article 6(4), breaking away from the narrow view that confusion must relate only to traditional “marks.” It expands the regulatory reach to include fashion’s more crucial elements—style systems and visual compositions. However, because Article 6(4) is open-ended, courts will need to carefully define boundaries in future cases to avoid excessively constraining the legitimate space for imitation.
3) Constructing a Three-Part Test - “Unauthorized Use, Certain Influence, Likelihood of Confusion”—for Article 6(4), and Applying It to Fashion Design Imitation
The court stated that conduct regulated under Article 6(4) must satisfy three elements:
a)	Unauthorized Useb)	Having Attained a Certain Influencec)	Likelihood of Confusion
The court then applied these elements to the facts:
a)	Unauthorized Use
The court acknowledged that similar designs may appear in the fashion industry due to the adoption of common trends. However, if only a few non-original designs are similar, coincidence cannot be ruled out. In this case, the defendant’s 99 designs exhibited varying degrees of similarity to the plaintiff’s designs, with some nearly identical. The defendant did not provide evidence of independent design or alternative sources, despite the court’s request for clarification. Therefore, the court presumed imitation and held that the defendant had engaged in “unauthorized use.”
b)	Having Attained a Certain Influence
The court held that clothing designs play a decisive role in forming a brand’s stylistic identity. It cited media coverage describing the plaintiff’s “minimalist European-American style” and “lady-gentleman style,” as well as evidence of store numbers, online followers, and sales figures. The court also considered consumer comments in the defendant’s store, including remarks such as “Is this store specializing in copying MOCO?” and “If you copy this closely, won’t MOCO sue?” All of this demonstrated that the plaintiff’s designs had achieved widespread recognition and thus possessed “a certain influence.”
c)	Likelihood of Confusion
Importantly, the court incorporated the digital commerce context—particularly “searching for similar items”—into its confusion analysis. The defendant copied the plaintiff’s designs, matched the plaintiff’s photography poses and styling, and used highly similar promotional copy, thereby increasing “same-item association” in online search results. As a result, consumers were likely to misperceive equivalence in product quality or believe there was a commercial connection between the two parties. This constituted confusion under Article 6.The three-part test articulated by the court balances subjective culpability (unauthorized use), objective recognition basis (certain influence), and market effects (likelihood of confusion). This provides a clear analytical framework for cases involving “overall style imitation” in the fashion industry. The court’s incorporation of “same-item search” technology shows a sophisticated understanding of digital market realities.
4) Highlighting the Independent Role of Article 2: Evaluating Competitive Harm Beyond Intellectual Property Rights
In response to the defendant’s argument that the plaintiff’s clothing designs were not “original” and thus did not deserve protection, the court distinguished between rights-based protection and conduct-based regulation. Copyright law, as a rights-based regime, does require the plaintiff to possess a right. In contrast, the Anti-Unfair Competition Law “primarily regulates unfair competitive conduct,” and its purpose is “to protect competition, not competitors.” Thus, as long as the challenged conduct violates commercial ethics or disrupts competitive order, it may constitute unfair competition regardless of whether the plaintiff possesses exclusive rights.
The court further emphasized that requiring originality as a prerequisite for Article 2 would improperly import IP law’s rights-based logic into a conduct-based regime. It would shift unfair competition analysis back into the traditional IP framework, contradicting the objectives of the Anti-Unfair Competition Law.
From an industry and competition-order perspective, the court noted that the defendant’s rapid, large-volume imitation of the plaintiff’s seasonal designs—timed closely with the plaintiff’s release schedule:
a)	increased search and decision-making costs for consumers,b)	created confusion,c)	weakened the plaintiff’s ability to recoup R&D investment,d)	generated a “whoever innovates loses” market dynamic,e)	undermined the industry’s motivation to innovate,f)	and disrupted normal competitive order.
Therefore, even without considering copyright, the defendant’s conduct constituted unfair competition under Article 2.
This reasoning is the most conceptually significant aspect of the judgment: the court clearly moved beyond rights-based thinking and adopted a competition-law framework balancing innovation incentives, freedom to imitate, and market order. This provides boundaries for the “affordable imitation economy” and close-following strategies, and strengthens the Anti-Unfair Competition Law as a tool for addressing fast-fashion and digital-era imitation.
5) Conclusion of the Case
Through its combined application of Article 6(4) and Article 2, the Guangzhou Internet Court incorporated “large-scale imitation of designs” into the regulatory structure of confusion, established the three-element analytical model of “unauthorized use – certain influence – likelihood of confusion,” and emphasized the independent role of Article 2 in regulating parasitic conduct and systemic imitation. This provides a practically effective pathway for fashion design protection when intellectual property protection is insufficient, and stands as a representative model for China’s fashion design protection under the Anti-Unfair Competition Law.
Conclusion
Overall, the Anti-Unfair Competition Law has formed a distinctive dual-track regulatory structure within China’s fashion design protection system:
1. Article 7, centered on “product get-up,” provides typified protection for mature brands and their visual systems;2. Article 2, with its openness and focus on regulating conduct, fills the gaps left by traditional intellectual property regimes and Article 7, particularly concerning overall style imitation, parasitic business conduct, and digital forms of expression.
Together, they form a comprehensive protection framework covering stylistic identification, visual systems, and competitive conduct, providing stable institutional support for the fashion industry amid rapid iteration and widespread imitation.This dual-track model has demonstrated strong flexibility and effectiveness in practice and provides a foundational institutional basis for constructing future design protection mechanisms suited to digital, platform-based, and globalized competitive environments.