Research On "Adverse Effect" Clause Of Chinese Trademark Law Article 10

According to Article 10 Paragraph 1(8)of Trademark Law of the People’s Republic of China(2013 Amendment),“Signs detrimental to socialist morality or mores or having any other adverse effect” may not be used as trademarks.However,“socialist morality or mores” and “adverse effect” are legal concept of uncertainty because of their relatively uncertain extension and intension.Judges or law-executors need discretion when applying this clause.The “adverse effects” clause presents a dual character.On the one hand,it is inclusive and flexible,and can be used to solve problems related to social public order or morality that cannot be solved by specific provisions;on the other hand,it is more difficult to apply,so it puts higher requirements on the comprehensive judgment ability of trademark administrators and judges and even personal literacy.The “public interest” and “public order” expressed in the current interpretation resources are uncertain and are still prone to causing bias in the process of understanding and application.In recent years,the numerous cases involving “adverse effects” clause have caused high social attention,and some cases have caused great controversy.Most of the domestic researches regarding the “adverse influence” clause are centered on hotspot cases.There are few researches on the concept and characteristics of “adverse effects” itself,and the cases of application of this clause has rarely been summarized in recent years.In view of this situation,the paper intends to carry out research from the basic problems of “adverse effects”,combing the results of domestic case studies,in order to propose some suggestions for the application of this clause.The first part addresses the basic issues of the “adverse effects” clause.This part begins with the concepts involved in the articles,sorts out the historical evolution of the articles and summarizes the characteristics of each stage,and discusses the dual characteristics of the clause with rationality and limitations.It focuses on the use of system interpretation methods to sort out and clarify the nature of the terms;The second part focuses on the current legislation and application status quo of “adverse effects” clause.Based on domestic legislation and interpretation resources and the case statistics applied to the clause,this part uses the form of chart to present.It also summarizes the deficiencies of application of the clause;The third part introduces the extraterritorial experience of the legislation and application of the clause.This section introduces international conventions as well as specific national and regional legislation and judicial practices,with a focus on the standards covered in national trademark guidance documents;In the fourth part puts forward some suggestions of improvement on applying this clause.The first level is the “visible” suggestion,that is,the improvement of the guidance documents.The second level is the “invisible” suggestion,that is,the improvement of the judgment standard.It will provide reference for trademark administrative practice and trademark judicial practice.