Study On The Application Of Adverse Effect Clause In Trademark Law

Concerning the question of how to apply the “adverse effect” clause, great debates exist concerning on severe application or lenient application. This article consists six chapters, starting from the "We Chat" Trademark Case, which caused widespread controversy, then discussed the problems reflected in the hearing of this case and the application of how to explain and understanding the Article 10, Paragraph 1, Item 8,and to provide suggestions for the progress of this case and later juridical practice.The introduction part mainly introduces several main disputes caused by the case of "We Chat" trademark. Combined with various views focus of Beijing Intellectual Property Court and scholars, this article puts forward to the question of application of terms "adverse effect".The first chapter mainly introduces several aspects of the "We Chat" case involving "adverse effects". "Adverse effects" has great connections with prior application, but the later user’s business interests is also need to be considered. In the specific application, whether or not to consider the subject who used the "adverse effect" the trademark, and the the examination scope,time of "adverse effect", are also the problem to be solved in the case of the existing trademark system.The second chapter mainly studies the relationship between the prior principle and the adverse effect. The prior principle embodies the protection of the Trademark Law of our country, and the "adverse effect" clause is the absolute reason for the refusal of the trademark registration, and its core is to protect the public order and good custom. As a result, adverse effects can be an exception to the principle of prior principle.The third chapter mainly discusses the status of "adverse effect" clause in trademark law. First, the article introduces and analyzes the development and evolution of the absolute and relative reasons in the system of trademark refusing, and the significance of the distinction of absolute and relative reasons. From the application and explanation of absolute reasons to provide the ideas for "We Chat " case.Chapter four draws the conclusion of the article, namely, we should not mistakenly apply or expanse the explanation of "adverse effect" clause. On one hand, we need to pay attention to the mainstream values and the recognized principle of the application, on the other hand, we should carry out in accordance with the practical and pragmatic processes.The fifth chapter is the conclusion, which summarizes the full context, and puts forward to some suggestions for the legal provisions and judicial practice.