On The Grounds For Prohibition Of Trademark Use

The grounds for prohibiting the use of a trademark refer to the grounds for prohibiting the use of a trademark as provided for in article 10 of the trademark law of the People's Republic of China.After the establishment of the trademark registration system in various countries,due to the development of the trademark advertising function,the abuse of registered trademarks is increasing,such as the use of trademarks with scandalous and violent meanings,or the attempt to register official marks,etc.,which harms the national interests and public interests.In order to balance the interests between the trademark registrant,the public and the state,ensure the well function of the trademark registration system,and save public resources,countries have gradually formed the grounds for prohibiting trademark registration.In terms of the grounds for the prohibition of trademark registration in western countries,China has improved the grounds for the prohibition of trademark registration into the grounds for the prohibition of trademark use in line with the management purposes of China's trademark law.The reasons for prohibiting the use of trademarks stipulated in article 10 of the current trademark law of China can be roughly divided into three categories.The first category is to prohibit the use of official insignia as trademarks;The second category is to prohibit the use of bad influence of the trademark;The third category is prohibiting the use of deceptive trademarks.Prohibiting the use of official insignia as trademarks is a common regulation of all countries in the world and also a requirement of the member states of the Paris Convention.However,China has also stipulated prohibiting the use of national names as trademarks,which leads to the refusal of the registration of many trademarks that reasonably use national names in practice.By comparing the regulations of the European Union,the United States and other places,this paper argues that the use(registration)of trademarks should be prohibited through other reasons,such as lack of significance,bad influence,or deceptive,and the national name trademarks should not be registered in the regulation practice.There is no need to specifically prohibit the use of trademarks containing national names.The "negative influence" clause stipulated in Chinese trademark law has broad scope,this paper analyzes the influence in politics,religion,racial discrimination,celebrity names,and social morality,and points out that due to the open terms of the "negative influence" clause and the strong force of it,its application should be strictly limit,otherwise it will hinder the trademark use freedom of business operators.In addition,this paper also analyzes the historical reasons for prohibiting the use of "ethnic discriminatory trademarks" in China,and points out that "national discriminatory" should be included in the meaning of "bad influence",therefore this article should be incorporated into the bad influence article.Article 10 of China's trademark law also stipulates that the use of deceptive marks is prohibited.By analyzing the existing cases and comparing the standards for the identification of deceptive trademarks in the European Union and the United States,this paper points out that in the process of identifying deceptive trademarks,the analysis of the fraud risk of the relevant public should be strengthened,rather than the mechanical judgment of whether the expression of trademarks is true.At the same time,in China's trademark trial and adjudication standards,"the use of other people's names as trademarks,leading to public confusion" is also one of the cases where trademarks are deceptive.This paper argues that the interests hurt by the use of other people's names as trademarks is mainly private interest instead of public interest.The nature of this kind of infringement is the same as counterfeiting or copying other people's trademarks,and it should be regulated by article 32 of the trademark law.Otherwise,the right to names will enjoy better protection than other civil rights.