Research On Merchandising Right

Merchandising right is a new concept of right appearing in the modern social economic life. Research on it doesn't mature aboard and starts just now in China. See from the world, not only a mature legislation mode, but also an intact system info doesn't exist in this field. In the last few years, there are more and more cases about merchandising in our country, yet a lot of issues of this kind left unsettled since the lack of correlative legislation and the lag of research work. The establishment of the legal protection system of merchandising right becomes the most urgent affairs now, which rely on a mature research work.The first issue in our research work is to choose a right term for merchandising right and define it correctly. In fact, using different terms or concepts just reflects that scholars understood the scope of the right differently. Yet, to construct a legal system that can resolve all problems brought by merchandising needs us to define the right in a broad sense and the concept frame can be supported by merchandising behavior and the object of merchandising right. The legal meaning of merchandising behavior embodies two aspects:"secondary exploitation"and"commercial use". The commonness of the object of merchandising right rests with the ability to attract consumers (differs from goodwill). So, merchandising right can be defined as a kind of right to control the secondary commercial exploitation of images or signs that having the ability to attract consumers.The character of merchandising right is also a controversy focus in our research work. Scholars have brought forward so many theories from different points of view which not only made the status of merchandising right complicated and confusing in the system of civil rights, but also hindered the construction of its system. But, to make clear the character of the right is the key to establish the legal protection mode of it. Though intellectual property rights theory takes up a dominant status in a good many theories all along, merchandising right doesn't belong to the category of intellectual property rights, and we can't limit the right in the category if we want to protect it roundly. In fact, both merchandising right and intellectual property rights belong to a more extensive category—intangible property rights. Even personality merchandising right is a kind of intangible property right since interest carried by the object of a civil right is the reasonable criterion we can consult to classify it into personality rights or property rights. Merchandising right as a kind of intangible property right has its own particularities: first, it comes into being as a by-product, second, it exists as a marginal right, and third, the non-fixity of the economic value of its object. These particularities made it difficult to rank merchandising right into a known sort of intangible property rights and it can exist only as a special kind of that category.Merchandising right derives from America's right of publicity and the latter one which is a kind of property right with the object being personality derives from right of privacy. Yet, passing through more than a half century's development, right of publicity is merely a kind of right existing in state level legislations, and see from the world, merchandising right is in a large extent not been accepted by legislations. So, it is still necessary to justify the merchandising right in modern society and scholars have brought forward so many justifications from moral, economic or other points of view on this issue. Each justification has its own advantages as well as limitations. In fact, we shouldn't judge each justification right or wrong absolutely, nor is it realistic to let one theory to overwhelm the others. We should review all the theories to gain a deeper and more general understanding on this issue, and just in such a process, can we discover that the natural right idea contained in labor theory and the autonomous self-definition theory deriving from the personality theory are more convincing justifications.Since merchandising phenomenon springs up in this world and gains people's attention only in the last few decades, the lack of research work and the character of merchandising right restrict the legislation process of the right in a large extent. At present, see from the world, the legal protection for merchandising right is multi-dimension, separate and special. To make it concrete, countries from European continent usually protect the right through personality law and intellectual property rights law, while America's right of publicity system initiates a protection mode of property right on personality, as to other kind of merchandising rights, they are mostly protected by intellectual property rights law and common law in America. Protection mode in our country resembles that in countries from European continent. Though it looks like that separate protection mode provides a comprehensive protection for merchandising right, the mode in fact can't protect the right roundly since each related civil right has its own function scope and they don't cooperate well in the merchandising issue. Reality needs us to admit merchandising right as an independent kind of civil right and construct its independent practical protection mode. And now, the mode should be constructed with the cooperation of civil code and unfair competition law. That is to say, we should bring the concept of intangible property into the general rules of civil code, make the appropriation of other's images or signs a kind of tort into the tort section of civil code and introduce the broad sense concept of competition relation into unfair competition law at the same time.To construct our merchandising right systems, the principle of balancing of interests should be followed. Here, the basic request of the balancing idea can be sum up as balance based on maximizing private interests. That is to say, the primary goal of merchandising right systems is to protect the interests of the owner of valuable images, the systems doesn't bear the mission of promote the spread of intellectual products. At the same time, the law should balance private interests and public interests though giving necessary limits to merchandising right. Disputes in merchandising right field are immanent, issues like the boundary of the right, the limitations, the cognizance of tort and so on are all in developing. So, in the process of constructing our merchandising right system, we should take into account object, subject, content, time limit, scope of protection etc. of the right roundly and we may use America's experiences of right of publicity system for reference.