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

Item(8)of the first paragraph of Article 10 of China’s Trademark Law is called "other adverse effects" clause in trademark authorization and confirmation,which is one of the reasons why trademark registration and use are absolutely prohibited.Because the "other adverse effects" clause is highly abstract,the understanding and application of this clause has been controversial.In academic circles and practice,there are many opinions on the interpretation of the nature of the "other adverse effects" clause.At the same time,the criteria for judging the "other adverse effects" clauses have not been unified.This article holds that the "other adverse effects" clause in the Trademark Law is an illustrative provision,while the "socialist morality" in the first half of Article 10,paragraph 1(8)of the Trademark Law is a clear provision listed,and the "other adverse effects" in the second half is a general matter.According to the interpretation rule that general matters should be consistent with enumerated matters,"other adverse effects" should be similar to "harmful to socialist morality" but not including the latter.As for the identification of "other adverse effects",this article holds that the general public should be the main body of identification,and when it comes to specific fields such as religion and ethnicity,the specific groups in this field should be the main body of identification;In identifying the object,we should proceed from the ordinary meaning of the trademark mark and combine with the designated category of goods or services.At the same time,the applicant,the applicant’s subjective intention and the way of use are taken as reference factors,but there is no need to consider the registration and popularity of the sign outside the territory.As for the review rules of "other adverse effects",the application of "case review principle" and "review standard consistency principle" is not contradictory,but has its own application.In addition,as for the relationship between "other adverse effects" clause and related clauses,specifically,there is a clear boundary between this clause and related clauses,that is,the adjustment scope of this clause does not overlap with that of "good faith" clause,other items in the first paragraph of Article 10 of the Trademark Law and the adjustment scope of "prior rights" clause.