Abstract:
In the event where there is a conflic between individual interests and the public interest, the trademark law gives priority to the maintenance of the public interest.The public interest in the context of the trademark law can be defined as the “general interest of an unspecified majority of people who are closely related to the acquisition and operation of the trademark right”.From the perspective of semantics and purposebased interpretations, it is more reasonable if the clauses on “bad influence” are understood as the miscellaneous provisions that are set forth for the maintenance of public interest.We can summarize the standards for the application of “bad influence” in judicial practice at the subject level by studying the Judgments.In general, only the symbol itself is examined when determining the “bad influence”, but additionally, the commodities or services designated by the symbol should also be taken into account in determining the same.“No subjective malice” or “not in actual use” shall not become the cause that prevents the application of “bad influence” and the confusion among the relevant public caused by an infringement on a specific civil right does not belong to “bad influence”.At the procedural level, the referential subject used to determine “bad influence” should be the general public and the time when to determine “bad influence” is the time when the trademark is applied.the determination on whether or not there is any “bad influence” should be based on “inherent meaning” and the burden of proof is normally assumed by the party claiming the existence of such “bad influence”.
