Study On The Applicable Standards Of The "adverse Effects" Clause Of The Trademark La

The expression of the "adverse impact" clause in trademark registration in China’s Trademark Law is based on the comparative principle,and there are problems in judicial practice that the application of adverse impact clauses has problems such as confusion in judgment conditions and inconsistent judgment results in similar cases.This paper analyzes the "adverse impact" clause from different dimensions,analyzes the types of cases in which courts applied the "adverse impact" clause from 2018 to2021,sorts out the specific adjudication points of the judicial authorities in the case,analyzes the difficulties in the application of the "adverse impact" clause in judicial practice,and sorts out the application standards of the "adverse impact" clause.The main body of the article is expanded in four parts.The first part is the introduction.It mainly sorts out the application background of the "adverse impact" clause,as well as the nature and connotation of the clause,and leads to the prominent problems of the clause in judicial application,and concludes the significance of this study.The second part is the empirical analysis of "adverse effects" trademark cases.Based on the empirical analysis of two types of cases,"public resources" and "Chinese characters,English and letter combinations",the main adjudication views of courts applying the "adverse impact" clause are summarized: first,the registration of a sign as a trademark will lead to the encroachment of specific civil subjects on "social public resources";Second,a certain meaning of Chinese characters,English and letter combinations will trigger associations,leading to misidentification by the public of the source of goods or services.This raises two major problems: first,it improperly expands the scope of "public resources",thereby expanding the scope of application of this clause and leading to abuse;Second,judicial practice is not uniform in the judgment factors for the application of this provision,resulting in different judgment results in similar cases.Thirdly,the reasons for the above problems are analyzed,and the specific reasons are mainly three: first,the principle expressed in the provisions of the "adverse effects" clause itself;Second,the subjective standards of the trial subject are inconsistent;The third is the diversity of the meaning of words.Finally,it puts forward systematic standards for the application of the "adverse impact" clause to improve the abuse of the clause in judicial practice.First,when other clauses can be applied to resolve disputes,it is not appropriate to apply "adverse effects" clauses;Second,the judgment elements of each people’s court should be the same,the subject of judgment should be limited to the entire public,and the interests protected should be the common interests of all the public,and the review time should be used as a reference factor;Third,the sign should be combined with goods or services,and the meaning of the sign should be comprehensively understood by the cognition and common usage of the general public;The fourth is to apply the allocation mechanism of the burden of proof to who claims and who adduces it,and comprehensively determine the application of the "adverse impact" clause.The subjective intention of the trademark applicant should not be taken into account in the judgment,and the actual application of the sign and the adverse effect should not be required.Three suggestions are put forward for the preferential application of non-catch-all rules and prudent application of the "adverse impact" clause,and appropriate tilt towards the protection of the rights of trademark applicants,so as to provide reference for the application of the "adverse impact" clause in judicial practice.