Analysis On The Application Of The "Adverse Effect" Clause Of Trademark Law In Judicial Practice

With the development of Chinese commercial reform,trademark's function of recognition is becoming more and more important.In practice,"WeChat","called a chicken","called a duck","ting naier","MLGB" and other similar cases emerged one after another,which makes the academia and judicial professions pay increasing attention to article 10,paragraph 1(8)of the trademark law.This article is based on the realistic need of judicial practice,the object of this study is defined as "other adverse effect" in article 10,paragraph 1(8)of the trademark law,trying to explore normative significance of "adverse effect" clause from multiple perspectives,combined with outstanding problems in applicable practice,rational suggestions were put forward.In the first part,based on the existing literature,the author examines the basic theory of "adverse effect" clauses from three aspects: definition,qualitative and positioning.Firstly adopting different legal interpretation methods to analyze the definition of "adverse effect" clause,secondly clarifying the position of "adverse effect" clause through making response to current debates,and "adverse effect" provisions and other laws have been compared and analyzed between each other again.This paper finally demonstrated that "adverse effect" provision is the miscellaneous provision of article 10,paragraph 1(8)of the trademark law,and belongs to the absolutely banned reason of use of "trademark law",should not be confused with relatively banned reason of use.The second part analyzed 192 cases associated with the "adverse effect" clause by retrieving trademark administrative dispute cases in 2018.Dividing cases in practice which applys the "adverse effect" clause in judgment into two categories,five small classes.Disputes and legal application problems involved in each type of the case are discussed in this paper,focusing on the judge shall be applicable to the specific train of thought in the real case,analysis its overall characteristics differences and contradictions,and to explore the rational guidance applicable solutions to provide more specific problems.In the third part,the author puts forward the current judicial situation of expanding the application of the provisions of "adverse effect" from three aspects,which are the application idea,the application principle and the application exception.First of all,application ideas of the "adverse effect" provisions were arranged from three aspects,which are application procedures,legal application and application methods;Secondly,starting from domestic legislation and international treaties,this paper analyzes the adjustment scope of the "adverse effect" clause and proposes that the "adverse effect" clause should be limited in the trademark itself.Only the unregistered logo or trademark with "adverse effect" provisions shall not be used,which has nothing to do with the use of the trademark.Using the method of pros and cons again,it firstly define the relevant factors to be considered in the application of the "adverse effect" clause from the positive side,and then exclude the irrelevant factors that should not be considered in the application of the clause from the negative side,in order to provide some applicable guidelines for judicial practice;In the end,it is proposed exceptions to the provisions of "adverse effect" should be strictly applied,and discretion should be exercised in judging whether to apply the provisions of "adverse effect" according to the user.