| From the 2016 "We Chat" trademark case judgment to academic discussions,to the recent "MLGB" and "Going Down" cases,which have had a huge impact on all sectors of society,Article 10,Paragraph 8 of the "Trademark Law" of "other adverse effects " Discussion has always been a hotly debated topic.The purpose of the "adverse influence" clause is to protect the "public order and good customs" of the society,but its protection scale and scope of coverage are not clear,there are large differences in theory and judicial practice,and the judgment standards of courts at all levels are also different.The author's theoretical research in judicial practice and academic scholars have found that the main problems are: first,whether the object of the "adverse effect" clause is the trademark itself or the goods and services combined with the trademark;Secondly,Whether the principle of "adverse effect " clause review is the " case review principle " or the " consistent review principle ",what is the relationship between the two.Thirdly,how is the determination of the "adverse effect" of the trademark determined,especially English and other non-native speakers.How the subject is defined;Fourthly,whether the subjective status of the trademark applicant is considered.In response to these four issues,this article is divided into four chapters.The first paragraph briefly introduces relevant cases and elicits problems in current judicial practice.The first two sections of Chapter II analyzes the problem of the object of the "adverse effect" clause.Whether the object of the "adverse effect" clause applies to the trademark itself or the goods and services combined with the trademark.In response to the public's latest query of English trademark cases,the conclusion is reached through system interpretation and other methods.The judgment of the "adverse impact" clause should be viewed in conjunction with its services,and the pronunciation of English trademarks should also be one of the contents that should be examined.The second two sections of Chapter II analyzes the review principles to be followed in the "adverse impact" clause.After discussing the object of review in Chapter 1,the issue of how to review is then addressed.Through the analysis of the first sheet,we know that the judgment of the "bad effect" of a trademark must be combined with its specific use situation.Therefore,the review principle of the "case review" of a trademark is consistent with this,which is the general direction.In addition,the "consistency principle of review" is a principle often followed in court decisions.What is the relationship between it and the "principle of case review" ? Through the case study of judicial practice,the nature of the two principles is analyzed,It is not like some scholars believe that they conflict with each other.It is a principle that can be applied at different levels at the same time.Finally,the seemingly contradictory decision of the English trademark is due to its particularity and does not violate the above theory.The first section of chapter three mainly analyze the judgment's subject of the "adverse influence" clause.The particularity of English trademarks is inseparable from the characteristics of the trademark judgment's subject.By studying the subject of Chinese trademark determination in cases and theories,the author believes that the subject of trademark determination should be the "social public",and attempts to define the characteristics of the "social public" and concretely demonstrate it.The second section of chapter three analyzes whether the subjective status of trademark applicants should be considered.The theory tends to be consistent,and thinks that the subjective status of the applicant is generally not considered.However,in some cases,the court used subjective status as the reason for the judgment.In addition,based on foreign judgments on trademark-related issues,the author makes some suggestions on the method of judging the "bad influence" of trademarks in China. |
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