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

China implements a registration system to protect trademarks.Article 10,paragraph 1(8)of the Trademark Law stipulates that the registration of a trademark shall be prohibited.The clause is also known as the “Adverse effects” clause.Due to the vague and abstract wording of the clause,there are many disputes on its application in practice.In recent years,with the emergence of “Wechat” case,“Call a duck” case,“MLGB” case and other well-known trademark cases,the discussion of the “Adverse effects” clause has been pushed to the peak.Although the Supreme People’s Court has explained and clarified the “Adverse effects”clause by successively issuing and amending the Opinions on Several Issues Concerning the Trial of Administrative Cases Involving the Authorization and Determination of Trademark Rights(hereinafter referred to as the opinions)and the Trial of Administrative Cases involving Trademark Authorization and Confirmation(hereinafter referred to as the regulations),however,disputes still exist between judicial practice and academic circles about the “Adverse effects”clause.This article is divided into five parts:The first part is the introduction part,which explains the research question,the research value and significance,the main research method,the research present situation and the article structure.The second part of the empirical analysis to understand the “Adverse effects”clause in China’s judicial practice of the status quo and problems.Through sorting out the judgment documents concerning the application of the “Adverse effects”clause in the past five years,the author finds that the expansion and application of the“Adverse effects” clause is quite serious,many cases which should not fall into its protection but should be regulated by other provisions have been wrongly judged by the “Adverse effects” clause.For the same case or similar trademarks constitute a“Adverse effects” judgment,the trademark administration agencies and the court decisions are not consistent with the situation is still common.The third part tries to analyze the causes of the dilemma of judicial application of the “Adverse effect”clause.The abstractness of the “Adverse effect” clause itself provides a great space for its expanded interpretation and application.The ambiguity of its positioning and the unclear definition of the interests of the protection law are also the main reasons for the above-mentioned problems.In view of the above three aspects,this part has made the definition to the “Adverse effect” clause related concept,the localization and the protection legal interest.Through legal analysis,it is made clear that the “Adverse effect” clause is the embodiment of the principle of public order and good custom in the Trademark Law,the legislative spirit of “Adverse effect” clause,as the absolute cause of the invalidity of trademark registration and the exemplary norm with bottom-covering nature,lies in the protection of public interests.The fourth part clarifies the premise of application of the “Adverse effects”clause.One of the main reasons for the expansion of the application of the “Adverse effects” clause is that it is confused with other clauses.This part makes a distinction between the “Adverse effects” clause and the confusing clause,and clarifies the premise of the “Adverse effects” clause.The fifth part,in view of the same case applies the standard inconsistent and the similar trademark judgment standard inconsistent question,this article has clarified the “Adverse effect” related judgment standard to deal with.The subject of the judgment of whether a trademark constitutes an “Adverse effect” should be the public,and the object of judgment should include the goods and services to be used in the dispute over the designation of the trademark,not be limited to the trademark mark and its constituent elements.The time for judgment shall be based on the date of trademark examination,and the case examination shall be regarded as the principle of judgment.The subjective attitude of the trademark applicant,the popularity of the trademark and the actual damages caused by the trademark shall not be taken into account.