Research On The Adverse Effect Clause Of Chinese Trademark Law

“Adverse effect” clause refers to Article 10.1(8)of the current Chinese Trademark Law.According to it,signs detrimental to socialist morality or mores or having any other adverse effect shall not be used as a trademark.In the legal practice,this clause presents a fluctuant standard of application,which leads to considerable uncertainty and non-uniformity.The correctness of the legal interpretation is the precondition of its rational application.Based on exploring the normative meaning of the “adverse effect” clause and surveying the serious divergence in the practice,this thesis puts forward some suggestions for the rational application of the clause.The body text is divided into four chapters.In Chapter One and Two,the normative meaning of the "adverse effect" clause is discussed.Chapter One aims at responding to what dose adverse effect refer to.This point is analyzed by four different aspects which include following the characteristics of exemplary provisions,referring to the domestic interpretation resources,tracing the relevant international conventions and learning from the foreign legislations.In Chapter Two,by considering the legislative technique and practical demand,combing the provisions system of the refusal to trademark registration and exploring the public interest protected by the clause,the confusion about the function of the clause is solved.Chapter Three presents a comprehensive investigation of the legal practice,which combined with results from both the existing empirical research and a new case study.The latter one focuses on the judge's specific train of thought in order to grasp the overall characteristics and contradictions,which can be helpful to make the suggestions more targeted.At last,in Chapter Four,three suggestions for the rational application of the “adverse effect” clause are put forward.Firstly,unless a legal loophole which must be filled up by the clause can be proved through rigorous demonstration and sufficient reasoning,the “adverse effect” clause should not be interpreted and applied in the way that beyond its normative meaning.Furthermore,an application principle is deducted at the starting point of the normative meaning.The sign itself is the only object that can be taken into consideration.All the factors related to the use of a certain trademark make no sense,which include the subject,the period,the subjective state,the goods that the trademark is used on,and so on.Finally,in order to better realize the purpose and function of the clause,there can be some exceptions,which means the goods or subject can be taken into consideration together with the sign.