Study On The Protection Of The Commercial Use Of Stamp Of Personal Element

With the development of economy and the booming businesses, more and more enterprises or businessmen use famous people's stamp of personal elements such as portrait,name and sound on advertising or packaging to attract more customers and get more economic interests with the permission of the famous people. Besides,there are many cases of unauthorized using other people's portrait or name for commercial purpose in the juridical practice. At the present there is still some controversial on the qualitative question and the damage compensation in the court's ruling of such cases. There are often different ruling results when different courts trial the same case. Therefore, it is necessary to study the issue of properly used stamp of personal elements into business and infringement act when using other people's stamp of personal elements without permission,and to analysis the profound legal problem which related to the above issue for making out a reasonable legal regulation system.This paper study the issue involving the commercial use of stamp of personal element by case analysis method, concept analysis method and comparison analysis method.Through analysing the three cases and drawing lessons from domestic and international research results,this paper argues and analyses the important or controversial problems involving the commercial use of stamp of personal element and puts forward the relief methods for the holder of mark of personal element in order to protect the lawful rights and interests of the right holder in a fair way.There are four chapters in this paper.The first chapter raises three problems which will be answered in the paper by analyzing three typical cases: 1.What is the legal character of using the mark of personal elements into commerce with the right holder's permission? Does the right of personality contain the economic interests? 2.What right is infringed when unauthorized using other people's portrait or name for commercial purpose happened? How to relief the right holder? How to calculate the damage compensation? 3.How can we protect the dead's personal remains? What is the legal basis?The second chapter mainly summarizes the theory about the right of personality and the stamp of personal elements. Through studying different theories,this part clarified the basic theory of the right of personality and defined the concept of the stamp of personal element.The third chapter analysed the legal relationship of commercial using of stamp of personal elements to solve the first problem in the first chapter.In addition,this chapter defined and classified the stamp of personal elements which could be used into commerce and business and stated the contents of commercial use of stamp of personal elements.The fourth chapter discusses the legal regulation method of commercial illegal exploitation of stamp of personal elements. This chapter combined with the authority of the right of publicity of U.S.A and the Germany's general personality, analyzed the properties of improper use others stamp of personal elements for commercial activities and the right character which is infringed in order to solve the second problem presented in the introduction. In addition,this chapter analysed and stated the infringement upon the dead person's remains and made a suggestion to construct the protection system for personal remains.