A Study On Protection Of The Law On Merchandizing Of Well-known Image

With the development of market economy, people come to realize the tremendous commercial value of the well-known image, and the commercialization of the well-known image comes into being. At the same time, entanglement of the well-known image in practice is growing. According to the reality , this thesis analyzes domestic and foreign research results and practical mode ,demonstrates the shortage of protecting the well-known image with the existing laws, and want to establish a substantive civil right to protect the well-known image, arounding the core issues of "the merchandizing of well-known image " .Besides the introduction and conclusion, this subject is divided into five parts.The first part introduces the basic problems of the famous image and commercialization. This part starts from the definition and characteristics of the famous image, analyzes the definition and basic characteristics of the famous image and the merchandizing right ,reveals the need for the development of market economy calling out the merchandizing of famous image .This part provides conceptual and theoretical preparation for the further discussion .The second part discusses the protecting mode of the merchandizing of well-known image in the world. This section analyzes the protecting mode and theory of the United States, Britain, Germany, Japan and other countries. The United States protect the true image by the right of publicity and protect false image by copyright, trademark and unfair competition law. Britain protects the true image by advertising law and counterfeiting suit, and fictional image of the main protection under copyright law. The true image in Japan is protected by expansion with the personal right and the protection of the false image is under copyright law. These methods have advantages and disadvantages, we should learn from criticism.The third part discusses the protecting mode of the merchandizing of well-known image. This section analyzes the protecting mode and theory of our country .Then discusses the conservation status of China, and pointes out limitations of the character of our intellectual property rights system and the system to provide legal protection of well-known image. We should establish a substantive civil right to protect the well-known image as an independent. In this part the author discussed protecting mode of discourse in our country, mainly from the right of the author, subject, object in details.The fourth part discusses the identified problem of the "well-known " in the famous image ,analyzes the protection of commercialization of well-known image should be restricted in reasonable from the practical needs. The identified method for the "well-known" is divided into beforehand and afterwards method. Through investigation and analysis of relevant public's awareness level of well-known image, the time of the use of well-known image, the state of infringement of well-known image, we can identify aspects of whether a particular image is a "well-known image". The reasonable restrictions include: the main right subject restricted to "well-known image"; the commercial rights of well-known image have time limits; public order and good customs restrictions; the fair use restrictions of rights holders.The fifth part makes some constructive comments for the tort liability system the commercialization of the well-known image .We should treat the fault principle as a principle of the infringement of well-known image. The damage to the facts, causation, damage and illegal acts as violations all identified subjective fault standard. Tort liability focused on cessation of the infringement and damages both. In calculating the amount of compensation can be infringed by the actual loss of the right people suffered, the infringer for infringing, the interests of infringement with the use of the image when the well-known aspects of reasonable fee determined. When the use of the above three methods are difficult to determine the circumstances, the judge can conduct discretion based on the actual situation.