On The Commercialization Of The Right Of The Anti-unfair Competition Law Protection

In recent years, there come forth much dispute entanglement in domestic judicialpractice which are triggered by the cross of trademark right, advertisement using right,and copyright, portrait right, for example "San Mao", "Dao Lang", etc. These casessimilarly reflect the protection problems of business interest that are contained infamous social role (real or fictitious). Withal, scholars attempt to use merchandizingright to solve this problem. Merchandizing right, namely the right of merchandizing,is a kind of right that give birth to roles or role character required by the public anduse them in commodity or permit other people to use. What the merchandizing rightwould protect is not works, which are embodied in physical form, or not name orportrait itself, but is the prestige that has comprehensive cognition and adored by thegeneral public. The right came into being through accumulating of mass socialactivities of its' subject. Making the prestige as its' object, the merchandizing right isdistinguished from other rights, for example copyright, trademark right, etc. At thesame time, businessmen's improper use and infringement of merchandizing rightresult in losses of the competitors in the same business and, disturb the regulareconomic order. For this, merchandizing right may be regarded as one of in tangibleproperty right, the competing right. There is much deficiency in protection of themerchandizing right in personal right law and intellectual property right law in effect,so it is needed that the "anti-unfair competition law of the people's republic of china"(hereunder abbreviated as "anti-unfair competition law") provided more effectiveprotection.Besides the foreword and the conclusion, this thesis is divided into four chapters.The first chapter talks about the concept and property analysis of merchandizingright . It mainly introduces the use of merchandizing right as a competing means incommon law and civil law countries and areas;the introduction and characterizationof merchandizing right in China, and believes that the merchandizing of object bringout new attributes against the object itself. From analyzing the qualities of it,merchandizing right is also regarded as a new form of right in the intangible propertyfield, and should be defined as a competing right of the intangible property right.The second chapter focuses on the tort relationship brought by the tort ofmerchandizing right. It mainly talks about the combination of right in the infraction ofmerchandizing right and the content of the tort. It makes an analysis of the mainconditions and the composition of private right against the main elements and theorder of business competition and constitutes violations of the conditions.The third chapter discusses the protection of merchandizing right of "Anti-UnfairCompetition Law", mainly stresses the need to protect merchandizing right with"Anti-Unfair Competition Law", expatiates the limitations of protection ofmerchandizing right of traditional personal right law and intellectual property rightlaw, and bring to light the properness of using "Anti-Unfair Competition Law" toprotect merchandizing right.The last chapter draws attention on the shortage and legislation perfection of theprotection of merchandizing right of active "Anti-Unfair Competition Law" in China.It puts foreword the deficiency in protection of merchandizing right of the active"Anti-Unfair Competition Law";the blockade of enumerative clauses in "Anti-UnfairCompetition Law" of china, which can not give the last resort protection ofmerchandizing right;the lack of definite regulation of merchandizing right;and thelack of general clause. Principle clauses cannot exert the function of discretion. Thelegislation perfection of protection of the merchandizing right of "Anti-UnfairCompetition Law" includes general method, special method, and complementarymethod. Comparing the above three methods, under the bi-directional conditions ofnot derogating executing efficiency and at the same time providing systematicsafeguard, the best legislation perfection way is to establish general clause.