Studies On Merchandising Right System

With the development of Chinese socialist market economy, the phenomena ofmerchandising are becoming increasingly notable in world today, from which numerousdisputes arise. Entanglements and/or other similar legal issues, consequently, are thejuridical puzzles in practice due to the lack of the support from theoretical system. Toimprove the puzzled situation in juridical practice and promote the perfection of Chineselegal system, study on merchandising rights is imperatively needed in the area ofintellectual property. Merchandising rights were first brought forward in a US precedent.Then the system on the right was confirmed by common law within more than half of thestates in US and by statutory law within some other states in US. So US scholars take thelead in the world in the theoretical research of the system. Based on some domesticscholars' research results, this thesis mainly refers to some US precedents onmerchandising rights and latest theoretical researches in US. Merchandising right is the right of some people to control the commercial use orexploitation of certain objects characterized by public attraction, which can be transferredto marketing promotion. According to its originations, the merchandising rights may fallinto three categories. Firstly, merchandising rights originate from real natural person,namely, publicity right. Secondly, merchandising rights originate from objects withinintellectual works. The said objects include but not limited to the character, the book name,the seal form, the decoration factors, the image, the segment from the intellectual worksand other objects related to the works. Thirdly, the merchandising rights originate fromother objects, mainly including the names, symbols, imagines, logos of university, charityorganization, research institute, and other important sports, social, natural events.Merchandising rights vary widely according to their different originations. This thesis consists of three chapters: Chapter 1 will introduce the origination and development of merchandising andmerchandising rights, analyze the legal insufficiency and defects in the protection ofmerchandising rights by current substantive laws, and discuss the value and legal basis for 4the establishment of the legal system on merchandising rights. The theory onmerchandising and merchandising rights will be studied, including the concept andcharacteristics of merchandising rights, related legal relationship concerningmerchandising rights. Chapter 2 is the comparison of merchandising rights against the rights of personality,trademark, copyright and other related rights, with emphasis on the differences betweenmerchandising rights and the other rights. Chapter 3 emphasizes on how to protect merchandising rights. Based on the currentcircumstance, feasible and practical protection policies under current legal system wereanalyzed. Then, Some opinions and suggestions on the establishment of the system ofmerchandising right in the legal framework in the future were given, including theduration to be protected, the ascertainment of the subject for the right, the review andapproval procedure and the cross protection of relevant rights, etc. In conclusion, the writer proposed two approaches for the protection ofmerchandising rights at present. Firstly, it is imperative to amend the Anti-ImproperCompetition Law that would enable the merchandising right to gain a minimal legalprotection. Secondly, the owner of the merchandising rights should raise their awarenessof self-protection and sufficiently protect their rights under current legal system.