The Understanding And Application Of The "Adverse Effect" Clause In Trademark Law

At present,China's economy is developing rapidly,the trademark market and the usage scenario of relevant registration will get complicated;especially,there is a big controversy on the application of the "adverse effect" clause.Although the Supreme People's Court successively issued two judicial interpretations in 2010 and 2017 to explain the application of the "adverse effect" clause,there are still big differences in the understanding and application of the "adverse effect" clause.In the judicial practice,whether the application of the " adverse effect " clause should take the "use of trademark" into comprehensive consideration has not been determined,and the academia has always been accompanied by different views on how to choose between the "trademark itself" and "use of trademark".By exploring the connotation and regulation scope of the "adverse effect" clause,this paper further clarifies the applicable method and judgment path of this clause,in order to provide feasible ideas and opinions for judicial practice.After determining the systematic understanding mode of this article and the content and scope of "public interest and public order" protected by this article,the author innovatively proposed the idea of classifying and applying the trademark according to its content and influence.To be specific,the scope of "adverse effect" clause is limited,and the scope of regulation on "adverse effect" clause should also be limited,that is,this clause has nothing to do with the violation of specific civil rights,violation of the principle of good faith,simple misguidance of consumers and damage to consumers' stable cognition.In the application of this clause,the sensitivity of possible adverse effects may vary with different types of content of trademarks.The classification of trademarks should be adjusted to correctly grasp the judgment criteria for the application of "adverse effect" clauses in various trademarks,and the role of "use of trademarks" in the evaluation of whether trademarks have "adverse effect" cannot be completely denied.Only in this way can we achieve the goal of ensuring the balance between the order of trademark registration and the protection of the diversified expression of trademark culture.