Your business has traded as “An Phat” for ten years when another company registers “An Phat” as a trademark for the same industry — or conversely, your registered enterprise name overlaps someone else’s protected trademark. Conflicts between trade names and trademarks are common IP disputes, yet many businesses mishandle them from the first step by confusing the two concepts.
This article distinguishes the two subjects, maps the typical conflict patterns, and sets out the lawful resolution path.
1. The core distinction: trademark vs trade name
- Trademark (Article 4.16, Intellectual Property Law): a sign distinguishing the goods or services of different entities. Rights are established through registration and a trademark registration certificate;
- Trade name (Article 4.21): the name of an organization or individual used in business to distinguish the business entity from others in the same business sector and area. Rights are established on the basis of lawful use — no registration, no protection title (Article 80, Article 6.3).
Simply put: a trademark attaches to products; a trade name attaches to the business entity. One enterprise may hold one trade name but own many trademarks for different product lines.
2. Conditions for trade name protection
Under Article 76, a trade name is protected if it can distinguish its business entity from others in the same sector and business area. Article 78 specifies three criteria:
- It contains a proper-name element (except where widely known through use);
- It is not identical or confusingly similar to a trade name another party used earlier;
- It is not identical or confusingly similar to another party’s trademark or a protected geographical indication that predates the trade name’s use.
Under Article 77, names of state agencies, political and social organizations, and entities unrelated to business cannot be protected as trade names.
3. Two typical conflict directions
Direction one — a trademark infringing a prior trade name: business A has lawfully used its trade name for years without registering a trademark; business B successfully registers an identical/similar trademark. A does not automatically lose — B’s registration overlapping A’s prior-used trade name may be grounds for A to oppose the application or request invalidation of the trademark registration certificate under Article 96 of the Intellectual Property Law, if sufficient grounds exist.
Direction two — a trade name/enterprise name infringing a protected trademark: a business adopts a name identical or confusingly similar to another’s protected trademark. Under Article 129.2, any use of a commercial indication identical or similar to another party’s previously used trade name for identical or similar goods/services, causing confusion about the business entity, establishment, or business activity under that trade name, constitutes infringement of trade name rights. Likewise, unauthorized use of a sign identical/similar to a protected trademark infringes trademark rights (Article 129.1).
4. Resolution roadmap
- Step 1 — Negotiation: send a warning letter proposing cessation or conditional coexistence. Many disputes settle here with clear evidence of use;
- Step 2 — Enterprise name violations: if the other party uses an infringing enterprise name, request the business registration authority to order removal of the infringing element;
- Step 3 — Opposition/invalidation: if the other’s trademark infringes your prior-used trade name, file an opposition against the application or request invalidation of the granted certificate;
- Step 4 — Litigation: ask the court to order cessation, apology, rectification, and damages; administrative sanctions may also be sought.
The winning key in every scenario is evidence of use: contracts, invoices, signboards, advertising materials, and business licenses showing when the trade name’s use began. Keep systematic records from day one.
5. Prevention
- Search trademarks before finalizing a brand or enterprise name;
- Register a trademark for the core brand — a protection title is the strongest shield, curing the trade name’s weakness (protection tied to actual use, limited to sector and area);
- Use the trade name consistently across all transaction documents, signboards, and websites to strengthen proof of lawful use.
Facing a trade name–trademark conflict or need a risk review before registering a new brand? Contact us for advice.
Prepared by the FLAW AI Legal Council. This draft is pending QA Council review before submission for approval; information is for reference only and does not replace legal advice for your specific case.