Study On Adverse Effect Trademark Law

According to Article 10 of Tademark Law,the following signs shall not be used as trademarks:(8)Those detrimental to socialist morality and custom or having other adverse effect may not be used as trademarks.The standards for the application of other adverse effect are unclear By studying the case of the application of Adverse Effect clauses in judicial practice,this article finds out the following problems:First,the connotation and extension of Adverse Effect are not clear,there are misuses in practice,and it is necessary to distinguish between Adverse Effect clauses and other relevant provisions.Second,Adverse Effect clause is ambiguous,and the object of protection of Adverse Effect clause is unclear Third,when it comes to Adverse Effect,whether it is necessary to combine the classification of goods and services,whether it is necessary to consider the mentality and the behavior of the agent.For these problems,this article is divided into three chapters.The first chapter analyzes the connotation and extension of Adverse Effect,explores the legal connotation of Adverse Effect clause,and the difference with other clauses.Starting from the connotation of Adverse Effect,this chapter explores the original connotation of Adverse Effect and the difference between Adverse Effect clauses and related provisions.The second chapter analyzes the scope of application of Adverse Effect clause,as well as the positioning of the clause.This article holds that Adverse Effect clause is the part of Article 10,paragraph 1(8)of Trademark Law.This article insist that Adverse Effect clause is not the same as the first seven items.The scope of Adverse Effect clause is the general case in the eighth paragraph of Article 10.The third part puts forward the detailed judgment standard of Adverse Effect.This article holds that it can be divided into three steps in judging whether the proposed trademark has Adverse Effect:First,figure out the meaning of the identification mark itself and the overall composition have Negative meaning,which is also the core element to be considered when applying Adverse Effect clause.This article will focus on the trademark with multiple meanings,the judgment criteria for special groups and the application of Adverse Effect in different regions.Second,for the sign that has no negative meaning to itself,figure out the meaning of the identification mark combined with the classification of goods and services used or registered,in case that the meaning of the trademark in the use environment will be alienated,or the trademark is unsuitable for the corresponding classification of goods and services.Third,for trademarks that are difficult to figure out the meaning of the mark combined with the classification of goods and services,take other behaviors into consideration,including but not limited to the business behaviors,the advertisement used in business,other signs used in business,etc.and comprehensively analysis the meaning of the trademark in the specific situation.