The Interpretation And Application Of “Unhealthy Influence” Clause Under Trademark Law

Currently, there are various opinions about the interpretation and application of “Unhealthy Influence” Clause under Trademark Law, and in many cases, administrative institution(including Trademark Office and Trademark Review and Hearing Board) and the court expanded the application of “Unhealthy Influence” Clause. Firstly, the characteristics and objects of “Unhealthy Influence” Clause should be analyzed. Secondly, we should comb how many types of the cases were judged according to “Unhealthy Influence” Clause and the complicated puzzles we faced. Lastly, the principles and the factors we should take into account when apply “Unhealthy Influence” Clause should be unequivocal. Besides, the factors can not be considered should also be concluded.Theoretical, comparative and empirical analyze are all adopted in this paper, and this paper can be divided into three parts, i.e., introduction, text, conclusion. And there are four chapters in the text.The first chapter overviews the legal interpretation of “Unhealthy Influence” Clause. The public interests which Trademark Law maintained contain multiple meanings, and the ways protect them differ. “Unhealthy Influence” Clause is the concrete reflection of public order and social customs in Trademark Law and an absolute bar to the registration of trademark. In addition, “Unhealthy Influence” Clause which is designed to regulate the behaviors harm the public order is the Miscellaneous Provision of “detrimental to socialist morals or customs” in Trademark Law, and the object of it is the meaning and the elements of the mark.The second chapter analyzes the cases referred to the mark cause “unhealthy influences” can be divided into three types. The mark harmful to the public order and good social customs can be rejected according to “Unhealthy Influence” Clause. And the mark probably misguide the customers should be rejected according to other provisions of Trademark Law, but not “Unhealthy Influences” Clause.The third chapter discussed the cases referred to the behaviors of the applicants cause “unhealthy influences” can also be divided into three types. Large-scale malicious trademark squatting should be prevented by other provisions(such as Article 4) of Trademark Law, and Section 1 of Article 44 can not be applied. Legal interests can be absorbed into the “prior rights” in Trademark Law. However, administrative institution and the court should not refuse the registration during Reject Phase. To avoid the occupation of public resources, we should consider many conditions, instead of expanding the application of “Unhealthy Influences”.The fourth chapter concludes the principles and the factors should be taken into account when apply “Unhealthy Influence” Clause. Besides, the factors should not be considered are also concluded in this chapter.