Anti-unfair Competition Law Protection Of The Famous Image’s Merchandising Right

With the continuous development of the commodity economy, various types of elementswhich have potential economic benefits would be probably commercialized. The trend ofimage commercialization is especially the most obvious one. In the case of Liu Xiang, thejudge wrote that "his portrait got commercialization infringement", which essentially meansthe merchandising of the famous image of Liu Xiang. The defendant took advantage of theinfluence of the famous image, combined this image to the advertisement, led to the confusionconsequences, and infringed the plaintiff’s right to commercialize his famous image freely,which considered as unfair competition behavior. Unfortunately, the judgment mentioned"commercialization", but did not pay attention to the importance of the economic interests ofthe famous image, only ruling the defendant to give spiritual compensation to Liu Xiang,from the perspective of Civil Law. Thus, this paper leads to the thinking of the famousimage’s merchandising right. On the basis of analyzing the limitations of the case, the authorintroduces the Anti-Unfair Competition Law Thinking and explained its reasonableness, inorder to re-examine the case from the perspective of the overall interests of society. It is truethat use the Anti-Unfair Competition Law to protect such a brand new kind of right wouldhighlight the deficiencies. Therefore, this paper also proposes some additional comments.In addition to the introduction and conclusion, this paper has a total of five parts.The first part is "Introduction of the Case and Question". This part mainly describes thecase of the whole story of Liu Xiang, the plaintiff’s claim and the defendant’s defense and thecourt’s verdict. On this basis, the author sums up the controversy that "the plaintiff’s portraitright has been infringed". And then, this part questions the case that it didn’t analyze the casefrom the perspective of the protection of the market order, which has certain limitations.The second part is "the Limitation of the Present Case Thinking". Firstly, in order torespond to the controversy of the case, this part talks about "relationship between the portraitand the public events with a particular significance","could public figures be the pleadablereason" and "relevance between portrait and advertisement". Secondly, this part explains thelimitation of the case from three aspects (Right identified difficulties, limitations ofbehavioral regulation and simplicity of the legal relationship), saying that the court only regulate the defendant’s behavior in accordance with the civil law, did not consider theplaintiff’s loss of property, failed to make the defendant to bear the corresponding legalresponsibility, ignored that the confusion behavior may cause negative impact to the wholeeconomic market.The third part is "Introduction of the Anti-Unfair Competition Law Thinking-based onthe famous image’s merchandising right". Firstly, this part introduces the concept of thefamous image’s merchandising right, explaining its meaning, characteristics and legalprotection mode, investigating the property attributes of the merchandising right. Secondly,this part introduced the Anti-Unfair Competition Law Thinking. From the aspects of"limitations of civil law protection mode","characteristics of the famous image’smerchandising right","specific ordinance" and "controversy of the case", this part emphasizesthat the application of the Anti-Unfair Competition Law is more effective and reasonable, andthat this protection should play its role in the market environment.The fourth part is "Re-examine the Case-based on the perspective of the Anti-UnfairCompetition Law protection of the famous image’s merchandising right". This part uses theforegoing paragraphs to re-examine Liu Xiang case. Firstly, by comparison to the WangYuewen case in2004, the author thinks Liu Xiang case could also be analyzed from theperspective of the Anti-Unfair Competition Law. This mode of thinking would play a positiverole in protecting the new kind of rights. Secondly, this part argues that the defendant takesadvantage of Liu Xiang’s famous image without any permission and that has damaged theplaintiff’s right to freely commercialize his image, which is central to the famous image’smerchandising right. Thirdly, combining with the existing legal regulations, this part importsthe Anti-Unfair Competition Law Thinking and made amendments and additions to theverdict of the case from three aspects as "to achieve legal purposes","to confirm subject oflegal responsibility" and "to make sure the content of responsibility". And the author thinksthat the subject to bear the obligations should be broadened, which means the X Press and ZDepartment Store both should take responsibility to the case, and they also should pay finesaccording to the law, in order to avoid unfair competition behavior from happening again.The fifth part is "Thoughts on the Anti-Unfair Competition Law Protection of theFamous Image’s Merchandising Right". On the one hand, this part mentions its limitations aslegal purposes deviation, limited legal subjects, missing of specific terms, lack of generalterms and limitation of punitive compensations. On the other hand, by referring to the related case and introducing the foreign systems and theories, this part makes some improvementadvices which mainly include extension of the subject, to add targeted ordinance, to establishgeneral terms and conditions, and to set more flexible punitive fine.The concluding part briefly summarizes the whole paper, which properly gave evaluationand supplement to the Liu Xiang case. Under the circumstances that new kinds of rightsprevail so fast, increasingly narrow range could be protected by law. Liu Xiang case is atypical manifestation. Under the existing legal frameworks, the judge needs to broaden hislimited law thinking, standing on the perspective of the whole society to consider the interestsof rights. So the relationships between the different interests would be balanced. Only in thiscondition could the market get healthy and orderly developed.