Research On The Application Of "Adverse Effects" Clauses In Trademark Law

The “adverse influence” clause stipulates that in Article 10,paragraph 1,item(8)of our country’s “Trademark Law”,it is the all-inclusive clause of this item,and this item is also the all-inclusive clause of the first paragraph,which has a “double all-inclusiveness” nature.The connotation and extension of the “adverse influence”clause are not clear.The definition of the meaning of the clause can be based on the principle of public order and good customs,comparing and examining the provisions of relevant legislation outside the territory,and combining with the current social and cultural background of our country.When specifically determining the scope of application of this clause,the trademark approval date shall be the date of determination,the public shall be the subject of determination,and the public interest shall be the object of protection,and it shall be clear that “causing consumer confusion and misunderstanding”will not necessarily harm the public interest,destroying the “stable cognition of the public” does not necessarily belong to the public interest.At the same time,other identification factors such as the mark in use or its constituent elements,the category of goods or services designated for use and the subject of use should also be considered.When the “adverse influence” clause is specifically applied,the clause should be distinguished from the relevant clause.It is clarified that the “adverse influence” clause is only applicable to the protection of public interests,while the “prior rights” clause is only applicable to the protection of the interests of specific civil entities.It should also be applied separately to situations that damage the interests of specific civil entities and the public interest at the same time.There is no crossover in application.For the trademark registration or use of“maliciously registering celebrity names” in practice,the corresponding clauses should be applied according to the specific circumstances of the case,and the“adverse effects” clauses cannot be applied in a “one size fits all” manner.At the same time,it should be clarified that the “adverse influence” clause and the“deceptive” clause cannot be applied at the same time.Regarding the trademark registration or use behavior that may cause the public to misunderstand the quality and origin of the goods,the “deceptive” clause should take precedence over the“impact” clause applies.