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

With the increasing number of registered trademarks in our country,the society pays more and more attention to trademark rights,and has made remarkable achievements in trademark registration and protection.In recent years,the proportion of right conflict cases in trademark right confirmation cases has been increasing.There has been controversy over the application of the "other adverse effects" clause in the first paragraph(8)of Article 10 of the Trademark Law of China for years.In practice,the administrative competent authorities and the judicial authorities have not reached an agreement on the understanding of this clause,so the judgment results of many cases have been widely discussed,and a large number of controversies have appeared in the theoretical circle.However,there is still no definitive interpretation of the "other adverse effects" clause.The expression of this legal clause is too abstract and vague,and there is no clear explanation.When applying the "other adverse effects" clause,there are disputes on the interpretation and application scope of the clause.It directly leads to different judgment results of similar cases in practice.Due to the wide application scope of"other adverse effects" clause in judicial practice,it not only leads to confusion in application,but also damages the stability and predictability of the law,which is not conducive to the stability of public order and goes against the original intention of the provision.Through the introduction of classic cases and the current situation of judicial practice,this paper clarifies the legislative purpose and positioning of the "other adverse effects" clause.The legislative purpose of "other adverse effects" clause is to protect public interests and public order,and the legal interests protected by the clause should exclude "only damage to specific civil rights and interests".On the other hand,the positioning of the "other adverse effects" clause is the bottom clause of the first paragraph(8)of Article 10 of the Trademark Law of China.Because the principle of public order and good customs is directly reflected in the "other adverse effects" clause in the Trademark Law of China,which is a restriction on the freedom of private law.At the same time as the trademark registration and use of the prohibition clause,it plays an important role to the trademarks.Therefore,in judicial practice,we should limit the scope of application of "other adverse effects" clause,and should not set a large scope to it,so as to avoid striking and suppressing the commercial practice and market innovation vitality.On the issue of how to limit the scope of the application,on the one hand,should be ruled out for civil rights and interests of the damage only,on the other hand,the judgment shall be based on specific "business context"for the consideration,Combined with the designated categories of goods or services to determine whether there is an uncivilized meaning,whether it will have a negative impact on public interests and public order in our country.