Research On The Application Of “Adverse Effect” Clause In Trademark Law

The research object of this paper is Article 10,paragraph 1(8)of China’s Trademark Law,which is “harmful to socialist morality or has other adverse influence”(hereinafter referred to as the "Adverse Influence" clause).It is an important manifestation of the principle of public order and good custom in the civil law in the trademark law.Because the expression of the clause is abstract and general,in the practice of trademark law,there is no unified understanding of the nature,positioning and specific applicable conditions of the "Adverse Influence" clause.In practice,there are some cases in which the terms of the trademark prohibition of registration are extended and applied.In some cases,there is a suspicion of violating the original intention of the legislation.Appropriate expansion and application can play a role in filling the loopholes in the law.However,if the behavior of cybersquatting or infringement of private interests is expanded too broadly,it will violate the logic of law application.Therefore,clarifying the application of the "Adverse Influence" clause is of great significance to the improvement of the trademark legal system and the development of trademark judicial practice.In view of this,the scope of the application of the "Adverse Influence" clause should be strictly limited,the extended explanation beyond the limit should be avoided,and other applicable clauses such as trademark laws and regulations should be fully explored.In the case of trademarks that impair the prior rights of others,“prior right” clause should be applied.The "prior right" clause or the principle of good faith;in the registration of non-intentional intentions,Articles 4,33 and 44 of the new Trademark Law may be applied according to different stages.At the same time,it is necessary to improve the judicial interpretation of the "Adverse Influence" clause of the Trademark Law,unify the applicable criteria such as the object of judgment,the judgment subject,and the judgment time of the "Adverse Influence" clause,and form a unified applicable norm between the trademark administrative organ and the court,and play it stably.The guiding role of trademark law.Finally,we can learn from the principle of proportionality,one of the basic principles of administrative law,to limit the discretion in the judicial application of the "Adverse Influence" clause.