A Study On The Adverse Effects Clause In Trademark Law

In March 2019,the Beijing Higher People's court made a judgment on the invalidation case of "MLGB”trademark.The uncivilized meaning behind this trademark makes the application of "harmful to the socialist morality or other adverse effects",that is to say,the application of "adverse effects" clause arouse the attention once again.Since"there are other adverse effects" as a miscellaneous provision is too abstract,it is difficult to form a unified applicable standard in judicial practice.As the embodiment of the principle of public order and good custom in the trademark law field,the "adverse effects",clause only regulates the trademark registration behavior that jeopardizes the public interests;however in practice,this clause is frequently confused with other clauses,such as the prior right clause,which results in expansibility application problems.This paper clarifies the identification elements of "adverse effects",analyzes the problems in applying "adverse effects" clause with case studies,and puts forward the way to improve it.It is unfolded from the following four parts:The first part is the general analysis of "adverse effects" clause in trademark law.Firstly,the application issue of "adverse effects" clause is introduced by the "MLGB"trademark invalidation case.Then the existing legal norms related to the "adverse effects" clause are specified.Through the demonstration of the current controversies on the "adverse effects”clause,it is clarified that the "other adverse effects" are "harmful to the socialist morality" and the "adverse effects" clause itself is parallel with the other seven items in the first paragraph of Article 10 of the trademark law.Finally,it discusses the legitimacy of the "adverse effects" clause.The second part is to analyze the elements of "adverse effects".On the basis of the existing theories and the form of judicial practice,five aspects are elaborated including the adjustment objects and effects of the "adverse effects" clause,the identified subjects of the "adverse effects",the identi fied scope of the "adverse effects" and the identified time node of the "adverse effects",which paves the way for the following practical investigation.The third part adopts the case analysis method to study the "adverse effects" clause.It determines the research cases from China Judgments Online and PKULAW at first to get the application status of the "adverse effect" clause in practice through the statistical analysis of the sample cases.Then the cases where the clause is confused with other clauses is analyzed,and the "low-key" trademark cases such as the "calling a duck and drawing" trademark application rejection case are classified to identify problems in practical application.After that,the rationality of the expansibility of the clause is explored.The fourth part is the countermeasures taken to improve the "adverse effects" clause.Combined with the above theoretical and case study,it puts forward improvement suggestions from three dimensions:First,the "adverse effects" clause should be applied in accordance with deliberation.The second is to distinguish the considerations of the"adverse effects" clause.The third to give a detailed explanation of the "adverse effects"clause.