Buying an ODM Product from a Chinese Factory: Who Owns the Design, and Can You Get Exclusivity?

Who owns the design of an ODM product from a Chinese factory? If you picked it from the factory's catalogue, the factory does, and it can sell the same product to others; paying for a new color or handle does not change that. A commissioned design belongs to whoever created it unless a written agreement says otherwise (Patent Law art. 8; Copyright Law art. 19). To own it, take a written assignment; if the design is patented or filed in China, register the transfer with CNIPA, as it takes effect only on registration (Patent Law art. 10). If time is short, sign the assignment before paying any development fee.

Exclusivity is a separate promise. A clause in which the factory agrees not to sell the product to others is usually traded for a minimum order quantity, binds only that factory, and does nothing against another factory that copies the design.

Sellers usually discover this in one of two ways. A competitor appears on Amazon with the same product a few months after launch, and the factory says, correctly, that it never promised exclusivity. Or the seller moves to a cheaper factory and receives a letter saying the product is covered by the first factory's Chinese design patent.

ODM, OEM: why the label matters less than the paperwork

In trade usage, OEM usually means the factory makes your design to your drawings, and ODM means you buy the factory's design, perhaps with changes and your branding. The labels describe the commercial deal. They do not decide who owns what. That is decided by who created the design and what was agreed in writing.

For a true catalogue product, the factory created the design before you arrived. Nothing you pay for a purchase order transfers it. For a design you commissioned, the Patent Law gives the right to apply for a patent to the party that completed the design, unless the parties agreed otherwise. The Copyright Law applies the same default to commissioned works such as drawings and renderings. In most ODM relationships, the factory's engineers do the drawing. Unless you have an agreement saying otherwise, the result is the factory's.

What about the changes you paid for?

This is where buyers are most often surprised. You suggested a different shape, sent a sketch, paid a development fee, and the factory produced the CAD files. Under the default rule, the factory completed the design work, so the factory holds the right to the modified design. Your sketch may give you a contribution argument, but arguing joint creation after the event is a weak position.

Put it in writing before development starts. The agreement should say that all designs, drawings, CAD files and samples created for you, including modifications to the factory's existing products, belong to you from creation; that the factory assigns to you the right to apply for patents on them; that it will not file any patent or design application covering them in its own name or through anyone else; and that it will sign the documents needed to register the transfer.

Can you get exclusivity on a factory's existing design?

You can ask for it, but understand what you are buying. An exclusivity clause is a contractual promise by the factory not to sell the product to others, for a period, in a market or on a channel. It binds the factory. It does not stop another factory that copies the product, and it does not give you any right against third parties.

Factories will typically agree to exclusivity tied to a minimum order quantity. Our view is that this is often a reasonable trade for a seller building a brand around one product, provided the clause is specific: which models, which territory or platform, for how long, what minimum volume keeps it alive, and what happens if the factory breaches. A promise of "exclusive supply" without those details is very hard to enforce.

If the design genuinely matters to your business, the stronger route is to buy the design outright, take an assignment of any existing Chinese design patent or application, and have that transfer registered. Chinese design patents last 15 years from filing, so a factory's existing patent may well outlast your product line.

Design patents in China: the timing trap

A Chinese design patent requires novelty. A design that has already been publicly disclosed, for example on a product listing, at a trade fair or in the factory's catalogue, generally cannot be validly patented by anyone afterwards, subject to narrow grace periods. That cuts both ways. If you plan to protect a new design in China, file before the product is shown or listed. And if a factory files a design patent on something already sold publicly, the patent may be open to invalidation.

Since June 2021 China also protects partial designs, meaning a distinctive part of a product such as a handle or a lid. That is useful for products where the overall shape is generic but one element is not.

What we would not do

We would not rely on "we designed it together" emails as proof of ownership. We would not pay a development fee without a written assignment of the result. And we would not assume that a Chinese design patent, or the lack of one, answers the question in your sales markets. A design patent in the United States or Europe is a separate right under separate law. We advise only on the Chinese side and work with local counsel where a foreign design patent is involved.

Frequently asked questions

• I added my logo to an ODM product. Do I own the design now? No. Branding does not transfer the design. You own your trademark; the factory still owns the product design unless it assigned it to you in writing.
• Can the factory sell my modified product to other buyers? If the factory created the modification and you have no written assignment or exclusivity clause, it generally can.
• Does buying the molds mean I own the design? Not necessarily. Mold ownership and design ownership are separate questions. You can own the tooling and still have no right to stop the factory making the design with other tooling.
• How do I take over a factory's existing Chinese design patent? By a written transfer agreement and registration with CNIPA. The transfer takes effect on registration, not on signing.

Related service: Mold & Design Ownership ↗, mold and design ownership agreement USD 1,500 · All fixed fees ↗

Related reading

• NNN Agreements in China: How to Stop Your Chinese Factory from Copying or Selling Your Product
• Paying for Molds in China: What to Agree Before the Factory Cuts Steel
• Someone Registered My Trademark in China: What Can I Do?

This article is general information on PRC law as of 9 October 2026 and does not constitute legal advice. The answer in any matter depends on its documents and facts.