Research On The Application Of Adverse Effect Of Chinese Trademark Law

Trademark as a source of distinguishing goods and services,related to the influence of brand in the market,trademark registration and protection issues have attracted more and more attention and discussion,with the increasing number of trademark applications year by year,the chances of the trademark being rejected are also increasing.From the "Wechat"trademark case in 2015 to the "Call a Duck" trademark case in 2018,which underwent a final hearing by the Supreme Court,to the "Zhong Nanshan","Li Wenliang" and "Fire GodMountain" trademarks that were snatched and registered during the new pneumonia epidemic.The "adverse effects" clause in the first paragraph(8)of Article 10 of the Trademark Law has aroused more and more legal people's concern.As one of the reasons for the absolute prohibition of registration,the "adverse effects"clause,a trademark used to denote "a trademark that is harmful to socialist morals or customs or has other undesirable effects.".The original intention of the "adverse effects" clause is to protect public interest and public order.However,due to its semantic uncertainty,too abstract conditions,the lack of a unified standard of judgment,in theory,administration and judicial practice is controversial,in the application process also highlights a variety of contradictions and problems.All over the world,there are disputes about the definition of the "bad effect"clause,the object of protection,the confusion of application with other clauses,the standard of judgment and the effect,but there are different degrees of flaws in each theory,the qualitative dispute resulted in the lack of unified theoretical guidance for the Administrative Judiciary in the adjudication of trademark registration cases,thus showing different standards and conclusions of adjudication,and the practical experience of countries in the world also have their own characteristics.At present,there are still different opinions on the application of the "adverse effects"clause,but its beneficial results in safeguarding the public interest and public order can't be questioned.In view of the above-mentioned prominent contradictions,this article starts from the interpretation of the connotation of the "adverse effects" clause,discusses the theoretical cornerstone of the clause,and on the premise of defining the clause,carries on the empirical analysis combining with the existing judgment documents,this paper discusses the application of this provision in judicial practice from various angles,and holds that the abuse of this provision should be limited,and the review organ should make the standard uniform as far as possible when making judgments,and consider the use behavior while considering the diversity of the meanings of signs,reasonable consideration of the main factors such as to achieve the goal of maintaining public order.