Trade name is a sign that commercial subjects are different from similar commercial subjects, and it also represents the right of commercial subjects to carry out activities in specific fields. It is the carrier of commercial subject's reputation in the market and an important intangible asset of commercial subject. Therefore, the laws of various countries should make special adjustments to it and protect it as a right, which is the right of trade name. Trade name right includes trade name right and exclusive right of trade name right. The right to use a trade name means that the right subject uses the registered trade name, and others have the obligation not to interfere. The exclusive right to use a trade name refers to the right of the obligee to exclude others from using the same or similar trade name, and its essence is the exclusive right and monopoly right of the commercial subject to its trade name.

First, the nature of the right to trade names

The exclusive right to use a trademark comes into being after the registration of a trademark. Theoretically, it is generally believed that the ownership of a trade name is absolute, not relative. But whether this right is personality right or property right, there are different opinions. The author thinks that a trade name is an important intangible property of an enterprise, and the trade name right has the transferability of property rights. Therefore, it should be classified into the category of property rights and belong to intellectual property rights.

Second, the legal protection of trade name right

China's General Principles of Civil Law and Company Law stipulate the name of an enterprise. Paragraph 2 of Article 99 of the General Principles of Civil Law stipulates: "Legalists, individual industrial and commercial households and individual partnerships enjoy the right to name. Enterprise legal persons and individual industrial and commercial households have the right to use and transfer their names according to law. " In the chapter of personal rights, civil law confirms that commercial subjects have the right to trade names, and their infringement constitutes infringement. China has also formulated the Regulations on the Administration of Enterprise Name Registration, which specifies the registration and protection system of trade names in detail. China's Anti-Unfair Competition Law and Product Quality Law also have principled provisions. With regard to international protection, China has acceded to the Paris Convention. As a member state, China has the obligation to protect the names of domestic and foreign companies. Paris convention for the protection of industrial property

Article 2 Name, patent and trademark of the manufacturer. It should be listed as the scope of protection of industrial property rights; Article 15 of the Agreement on Trade-related Intellectual Property Rights defines a trademark as: "Any mark or combination of marks that can distinguish the goods or services of an enterprise from those of other enterprises is a trademark." According to this regulation, a business name can be used as a trademark, and it is protected by the trademark law by applying for registration, thus realizing multi-level and multi-angle protection of the same trademark.

Different sanctions are stipulated for acts violating the right to trade names, and different responsibilities are required. (1) Civil liability: stop infringement, restore reputation, eliminate influence, apologize, compensate losses, etc. (2) Administrative responsibility: According to the laws of our country, the administrative organ may impose administrative penalties such as confiscation of illegal income, fine and revocation of license. In addition, if the circumstances are serious, they may also be required to bear criminal responsibility; According to the provisions of the Paris Convention, commercial enterprises can be prohibited from exporting, sealing up or sealing up commodities that infringe on trade name rights.

Third, the conflict between trade name right and trademark right.

The so-called conflict between trademark rights and trade name rights means that different trademark owners and trade name owners use the same or similar commodity representative symbols, which makes consumers confuse the source of goods or services and make them mistakenly think that there is a certain connection between them, thus buying goods or receiving services wrongly, resulting in the conflict of rights between them.

If there is a conflict between the first trademark registration and the second trade name registration, the law should protect the rights and interests of the trademark owner; However, if the trade name right of an enterprise is registered first and then the trademark is registered, if the trade name right can resist the trademark right, it should be protected by law; If the trade name right can't compete with the trademark right, and the trademark right is legal and valid, the trade name owner still enjoys the exclusive right of the enterprise trade name right within its corresponding scope.