The Interpretation And Application Of "Adverse Effect" Clause Under Trademark Law

Article 10,paragraph 1(8)of the Trademark Law of China is the "adverse effects"clause-trademarks are harmful to socialist morality or have other adverse effects.In recent years,there are more and more cases in which the "adverse effects" clause applies in trademark review and judicial practice,and the same or similar situations have different results.The debate about the nature of the "adverse effects" clause has not stopped.Regardless of the administrative and judicial procedures in authorization and formulation of trademark,or the theoretical controversy,there is a clear tendency:the "adverse effects"clause is understood as miscellaneous provisions,and attempt to clarify its scope of application in a typed manner.The typed manner is easy for the administrative and judicial authorities to operate,and it has positive significance,but it also has obvious defects:When it is difficult to exhaust all possible situations,it often turns to "other" as the bottom,and evolves to "other" with "other",which blurs the essence and key of the problem and expands the discretion of the trademark authority,which is contrary to the spirit of the rule of law.The analysis of the "adverse effects" clause needs to proceed from a higher abstract level-the trademark ban clause level.Analyze the nature and characteristics of the trademark ban clause,and clarify that the trademark ban clause and even the entire trademark law system are set to limit the administrative power of the trademark authority.The trademark authority,as a law enforcement agency in the process of authorization of trademark confirmation,has certain discretion,but such power needs to be restricted by law.According to the provisions of the law,it should not be refused if it should be authorized,and it should not be authorized if it should be rejected.The "adverse effects"clause is one of the trademark ban clauses,and its role and purpose sre also to limit the power of the trademark authority.Therefore,the "adverse effects" clause should not and cannot be the miscellaneous provision,and should also prevent expansion explanation when applicable.Under the premise and principle of preventing the discretionary expansion of discretion,then discuss how to apply the "adverse effects" clause.This thesis uses the trademark ban clause as an entry point to study the "adverse effects" clause and analyze how it should be applied in judicial practice.It is mainly divided into four parts.The first part raises questions,and the famous "WeChat" trademark case raises the thinking about the "adverse effects" clause.The second part introduces the current status of the application of the "adverse effects" clause in China,analyzes the chaos and contradictions in the application of the "adverse influence" clause by the trademark administrative authority and the court,and the theoretical controversy over the nature of the "adverse effects" clause in the academic circle.The third part clarifies the explanation of the "adverse effects" clause.At the domestic law level,the trademark ban clause is taken as the perspective of the argument,and the "adverse effects" clause is not the miscellaneous provision.At the international law level,analysis of the relationship between the "adverse effects" clause and the principle of protection in the Paris Convention.The fourth part is to prescribe the premise that the application of the "adverse effects" clause should be limited to the discretion of the trademark authority.The "adverse effects" clause is prevented from being expanded and interpreted and used at both the entity and program levels.