Study On The Application Of "Adverse Effects" Clause In Trademark Law

In the current business environment with intellectual property as the core competitiveness,trademark system plays an extremely important role.In the trademark law,"adverse effect" clause has always been a topic of concern in the theoretical and practical circles.In recent years,with the issuance of the final judgment of the case of MLGB trademark,this clause has once again become a hot topic of discussion.This paper consists of four parts.The first part generalizes the basic matter of the case above,taking the case as the starting point,finds out the core issues of the case through the focus of dispute and the reasons of judgment,and further analyzes the reference value of the case for the application of "adverse effect" clause from four aspects,they are judgment subject,judgment time,meaning judgment and burden of proof.In the second part,the article explains the basic meaning of "adverse effect" in detail,summarizes the development process of the clause,and then points out the differences of views on the positioning of the clause in the academic community.Through comparative analysis,the clause is finally defined as the bottom clause of item 8 of paragraph 1,Article 10.Afterwards,in this context,the paper discusses the legal interests protected and the relationship between the clause and the principle of public order and good customs.The third part makes a summary and analysis of the current situation of the application of "adverse effect" clauses in China from the perspective of the application object and scope,and then sums up the difficulties existing in the specific application,including the inconsistent standards of evaluating "adverse effects",the improper expansion of the application of the clauses,and the unstable results of application of the terms.At the same time,this part summarizes three main reasons for the existence of the application difficulties,which are limitations of the legislative technology,the diversity of factors and the differences between reference rules.In the fourth part,on the basis of actively referring to the relevant foreign regulations,we should accurately grasp the positioning of the "adverse effect" clause as a restrictive clause,and make it clear that it should be applied to the cases doing damage to social public welfare,in which adverse effectscome into existence on the logo itself or the use behavior,and finally put forward the applicable standards of the clause,specifically the judgment subject of "adverse effect" should be the public,its judgment time shall be the stage of specific examination,and its judgment effect shall be combined with the use of trademark.