| "adverse effect" clause of trademark registration plays an important role in the trademark law as a clause to balance the legal order and public order.Starting from the legal provisions themselves,this paper interprets the "adverse effect" clause of the trademark registration through the method of interpretation of literal meaning and systematic interpretation.This paper expounds the legislative purpose of the article which is based on public order and good custom,and analyzes the legislative evolution of the article by combing the history of the four amendments of the trademark law.The "adverse effect" clause in trademark registration is a miscellaneous clause that prohibits the absolute cause of trademark registration.The adjustment object of the clause is not only limited to the logo itself,but also the use of the logo.The interests of consumers belong to the public interest protected by the clause.As a miscellaneous clause,if the judicial application of the "adverse effect" clause of trademark registration does not form a more accurate and unified judgment thinking,it risks giving the judge too much discretion,and may even become a tool for the judge to escape from the principle.Through the analysis of 70 cases whose core of dispute is whether the clause are applicable or not,this paper summarizes the four points of consensus and inconsistent application standards,inconsistent determination of different cases of the same type,and conflicts with other provisions.In order to ensure the trademark registration "adverse effect" clause can better play a role in the judicial practice,safeguard judicial justice,the application of clauses needs to form the general rules of clause recognition,establish the principle of prudent judgment,clarify the conditions to be considered and the factors not to be considered in the determination of terms,and reach a consensus on the determination of terms in the specific areas of great controversy combined with the characteristics of the field. |
