Case Study On The Judicial Application Of The Clause Of The Trademark Law " Unhealthy Influences"

Beijing Intellectual Property Court made the judgment for "Weixin" trademark case on March 11, 2015, affirming the "unhealthy influences" judgment applied by trademark review.Weixin trademark case is the first judicial decision with the "other unhealthy influences as a result of economic factors. The court made the judgment according to the article 10 in trademark law and it didn’t belongs to the absolute case in trademark registration from the theory and the item 8 of“harmful to socialist morality or have other “unhealthy influences” was served as the miscellaneous provisions. Although detailed explanations has made concerning the other unhealthy influences and the situations in the judicial interpretation of Opinions from the Supreme People’s Court on the Trial of Trademark Authorization of Administrative Cases for a Number of Issues.But there were still shortcomings, leading to a series of theoretical and practical problems triggered by the problems that if the trademark law had unhealthy influences were far from being solved. This paper mainly researched the essential attributes for the applicable clauses concerning the other unhealthy influences and the puzzling questions for its application, for example the relationship of the related cases in “name of a natural person", "Virtual Character”, which were brought by the“Weixin Trademark Case”occurred recently in our country. This paper consists of introduction, text and conclusion three parts.The introduction part mainly explained the motivation and purpose of writing, namely, by analyzing the case for clauses of“other applicable unhealthy influences”, the necessity for the judgment of “other applicable unhealthy influences” of the trademark law in our country was put forward, hoping to be helpful for the proper application of the clause in the judicial practice and judgment.The Chapter one taking Weixin case as the entry point led the problem and introduced the related legislation situations for "other unhealthy influences" in domestic and abroad at the same time. The paper explicated the essential attributes of "other unhealthy influences”, serving as the clause of public order and good custom so that the clause should not be excessively applied in the judicial practice.The second chapter brought the problem from the viewpoint about the applicability of "other unhealthy influences" for the name of a natural person used by judge in “Liu Dehua Case” and “Li Xingfa Case” to further explore the applicability of "other unhealthy influences" and problems for the name of natural person and put forward the idea that the name of natural person belonged to property right and interests in the civil law and the problem could be solved by the application of“priority right” clause.In the third chapter, by comparing three typical cases and discussing the relationship between the “unhealthy influences” and the virtual roles, it clarified the application of the“priority right”and the solutions concerning the problems of rush registration for the virtual roles in large scale maliciously and the application for the regulations of article 44 in“trademark law”without real use intention and other rush registration situation.The last chapter was the conclusion, which mainly focused the summarization and conclusion for the essential attributes of “unhealthy influences”clause, “unhealthy influences”clause and the name of a natural person, the relationship of virtual roles and described the disadvantages of the paper for supplementation.