Many founders pour effort into a brand name, only to see the trademark application refused or opposed during publication. The root cause is usually not a “bad name” — it is that the mark collides with someone else’s prior rights, or Class 35 service marks are being used in the wrong way. Two official CNIPA guidelines explain both issues clearly: one on avoiding conflicts with prior rights, the other on how to use Class 35 service marks correctly.
I. Why these two guidelines matter
A trademark is not “yours once you think of a name.” Under Article 32 of China’s Trademark Law, an application must not infringe another party’s existing prior rights. At the same time, Class 35 services are frequently misused because of misunderstanding, triggering infringement or unfair-competition disputes. Both guidelines turn the rules into actionable steps with real cases — essential reading for every applicant and brand owner in China.
II. Avoiding prior-rights conflicts: seven types of rights to watch
The guideline defines “prior rights” as rights or interests that already existed and lawfully subsist before the trademark’s filing date. Notably, prior trademark rights are excluded (protected by other provisions). The seven key categories:
- Trade name right: a trade name (including well-known abbreviations, or individual/partnership names) with certain reputation among the relevant public.
- Copyright: another’s pre-existing work within its protection term — artwork, text, photography, etc. (e.g. a logo artwork).
- Design patent right: another’s prior, subsisting design (e.g. product shape).
- Name / portrait right: a name, online alias, or portrait stably associated with a specific natural person and enjoying a certain reputation.
- Geographical indication: a sign indicating a product’s specific origin where quality is essentially determined by local natural or human factors.
- Well-known trade dress: a distinctive, non-generic name, packaging or decoration of a well-known product.
- Other protected interests: e.g. titles of works, character names (“Black Cat Sheriff”, “Honor of Kings”, “Luo Tianyi” cases).
In practice, search thoroughly before filing — via the National Enterprise Credit Information Publicity System and CNIPA’s patent search system; if a conflict exists, obtain the prior right holder’s licence and use the mark only within the authorised scope.
III. Class 35 service marks: do you actually need them?
Class 35 mainly covers services that help others’ business operations/management, advertising, marketing and promotion. Its core feature: the service is performed for others, not for the right holder’s own business needs.
A typical manufacturer that only makes or sells its own goods, without providing advertising or business-management assistance to others, generally does not need Class 35. By contrast, the following typical providers should file on the corresponding specific items:
- Advertising services (advertising, ad planning, outdoor advertising, etc.);
- Business management assistance (business consulting, market research, consumer studies, etc.);
- Franchising, import/export agencies, sales promotion for others, online marketplaces for buyers and sellers;
- Personnel management, office functions (copying/secretarial/records), accounting, finding sponsors;
- Retail or wholesale services for pharmaceuticals and medical supplies.
The guideline stresses: using a mark on a shop front to sell one’s own goods is NOT use of “sales promotion for others” (the “Caidiexuan” case, Supreme People’s Court); a ride-hailing platform’s own management activities do not automatically fall into Class 35 (the “Didi” case).
IV. Practical checklist
- Search prior rights before filing: screen trademarks, trade names, copyright and patents to reduce opposition/invalidation risk.
- File Class 35 only when needed: apply only if you genuinely serve others; avoid blind all-class hoarding.
- Use properly and keep evidence: service-mark use is harder to prove — keep contracts, invoices, promotional materials and signage aligned to defend against three-year non-use cancellation.
- Know the boundaries: a shop-front mark for your own goods ≠ “sales promotion for others”; licensees must stay within the licensed scope.
- Good faith: no hoarding, no free-riding on famous marks; malicious squatting faces refusal, invalidation and credit penalties.
V. Two common misconceptions
Misconception 1: “I own a Class 35 mark, so no competitor can use a similar sign.” A Class 35 service mark protects “help given to others’ business/management”; you cannot expand its scope just because another business looks “commercial” (Didi case).
Misconception 2: “Putting my mark on the shop front is using my Class 35 mark.” A shop-front mark used to sell your own goods is use of a goods mark, not automatically a Class 35 service-mark use (Caidiexuan case).
VI. Frequently asked questions
Q1: What are “prior rights” and what do they include?
Rights or interests that already existed and lawfully subsist before the trademark filing date. They include trade name rights, copyright, design patent rights, name and portrait rights, geographical indications, well-known trade dress, and other protected interests (e.g. titles of works, character names). Prior trademark rights are protected by other provisions and are excluded here.
Q2: I only make and sell my own products — do I need Class 35?
Generally no. Class 35 protects services “for others” such as advertising, business-management assistance, franchising and sales promotion for others. A business that only manufactures or sells its own goods does not need Class 35; if it genuinely provides such services to others, it should file on the corresponding specific items.
Q3: Someone squatted my trade name / work / name — what can I do?
The prior-right holder may file an opposition or invalidation against the mark. Malicious squatting may be refused, invalidated ex officio, and subject to credit penalties. The holder may also sue in court for cessation of infringement and damages.
Q4: What exactly is “sales promotion for others” in Class 35?
Services that help others boost the sales of their goods/services by providing advice, planning or consulting. It does not include retail or wholesale that resells goods for a margin. A mere distributor is usually the recipient of such services, not the provider.
To manage your trademark lifecycle and renewals, visit our free patent/trademark annuity monitor; for selecting classes see the trademark class guide.
This article introduces the intellectual property system of the People’s Republic of China (China); for specifics, please refer to the latest official regulations.
Source: China National Intellectual Property Administration (CNIPA) — “Guideline on How to Avoid Conflicts with Prior Rights When Applying for and Using Trademarks” (2022-12-07, original); “Guideline on Application for and Use of Class 35 Service Marks” (2022-12-07, original). This is a policy interpretation for reference only and does not constitute an official interpretation or legal advice.