A trade name right, also called an enterprise name right, is a form of industrial property that entitles an enterprise to exclusive use of its registered trade name within a particular territory. China has no separate statute devoted to this right, but relevant provisions appear in the General Principles of the Civil Law, the Anti-Unfair Competition Law, the Provisions on Administration of Enterprise Name Registration and the Trademark Law.
Article 31 of the 2001 Trademark Law states that a trademark application must not prejudice another party's existing prior rights. The corresponding provision is Article 32 of the 2013 revision. Those prior rights include trade name rights. Under the trademark examination standards, an application for a mark identical or similar to another party's previously registered and used trade name with a certain reputation infringes that earlier right if it is likely to confuse the relevant public in China and harm the trade name owner's interests.
Conditions for relying on an earlier trade name against a later trademark
1. The trade name must have been registered and used before the trademark application's filing date. Foreign enterprises may establish earlier rights through trading documents, advertising materials and other evidence showing use of the name.
2. The trade name must have a certain reputation among the relevant public in China. Relevant factors include its registration date, the duration and geographical extent of its use, the enterprise's business performance and advertising.
3. Registration and use of the applied-for mark must be likely to cause confusion and harm the trade name owner's interests. Confusion means that the public may believe the goods or services originate from that owner, or that an association, licence or other relationship exists with the owner.
The assessment considers the distinctiveness of the name, including whether it is an unusual invented word without a specific meaning; the reputation of the earlier name; and, in principle, whether the trademark's goods or services are identical or similar to those provided by the trade name owner.
Protection across classes
Earlier trade names are generally protected in relation to identical or similar goods. Modern enterprises, particularly large companies, increasingly operate across sectors. Where a trade name is highly reputed, the later mark is very close to it and the applicant's bad faith is evident, protection should not be unduly narrow. It may extend to other related goods or services if their use could confuse the public and damage the trade name owner's interests.
Protection of an abbreviated enterprise name
An abbreviation may also be protected as an earlier trade name if the evidence shows that long and extensive use has made it known to the relevant public, that it has acquired a strong reputation in the relevant industry, and that it functions as a commercial identifier distinguishing the enterprise.
