Public order and morality in China's Trademark Law: a vague scrutiny based on political order and social morals

Under Article 10(1)(8) of China's Trademark Law, a trademark that is contrary to public order and accepted principles of morality is not only refused registration, but also forbidden to be used in commerce. Numerous cases involving the registrability of trademarks are brought to China's courts, and Article 10(1)(8) is one of the main grounds for refusing trademark registration. In general, there are two specific legal issues concerning the application of this provision. One is the legislative purpose and rational basis of this provision. In fact, China's Trademark Office and courts used this provision to block trademark hoarding and to protect the civil rights of others before the Supreme People's Court clarified that the purpose of this provision was to protect public interests. The other is the standard for determining what is offensive, which is a common problem among countries with a similar provision. Indeed, it is difficult to create a consistent standard because of the subjectivity involved in drawing moral conclusions, the cultural conflicts between different groups and the unpredictability of the perception of the general public. However, these problems could be solved if the examiners set a low moral threshold for trademark registration, as the perception of the general public with normal sensitivity and tolerance is easier to ascertain when a mark is deeply offensive. In addition, not all trademarks related to public authorities and serious social events should be forbidden under the morality provision, and the court should take account of the possibility of damaging political order and traders' freedom of expression.