Curbing Preemptive Registration Of Celebrity’s Name Marks Under Laws

The trademark registration in China develops fast now, and some statistics are NO.1in theworld. All these show that China is a great country of trademark. We should recognize theprogress and achievement; meanwhile we should know that China is not called the strongcountry of trademark. There are many drawbacks in the rules and the law of trademark. Theproblem that the name trademarks of the celebrity are registered abusively proved it.It is a common phenomenon in the present society that the name trademarks of thecelebrity are registered preemptively. It is likely to cause a misunderstanding if the trademarkthat is registered preemptively is used on the goods or services, and it will harm theconsumers’ interests. The behaviors usually do harm to the right of the celebrity. Moreover,they bring the loss of the interests and the destruction of people’ image. Some laws have therules to solve the problem, suck as "The Trademark Law" and "The Anti-Unfair CompetitionLaw". But the laws are not clear and definite, and the operability is not strong enough, whichexpose the drawbacks. The thesis introduces the relevant concepts, legal basis, legalregulation, and after that found the presence of the missing, which begins with two typicalcases and aims to provide some feasible advices for the registration problem.The first part of this thesis is the introduction of the two cases and a simple analysis of thefocus of the dispute, which leads to the two basic forms of the abusive registration. one formis to use the name of the celebrity to register directly, the case of the famous basketball playerYi Jianlian in case1is a typical form; the other form is to register after the transformation ofthe celebrity’s name, in case two a company in Chengdu used a unique Chinese homonym toregister the trademark, which led to a series of legal problems.The second part it tells us some basic concepts involved in this issue, so that we can have apreliminary understanding of this issue. First of all, it has a brief introduction of thetrademark. Second, from the broad and narrow view, it gives us a interpretation of thepreemptive registration of a trademark. And in this thesis we mean the broad concept. Thelast but not the least, it introduces the "celebrity", and illustrates the huge market value of the celebrity in modern society if the name of the celebrity is used in the commercial area.The third part focuses on the academic analysis, which is an very important part in thethesis. It tells us the conflict between the right of name and the right of trademark, pointingout the basic problem. And, according to the relevant provisions of "The Trademark Law", itanalyses the prior right of name. Then, it focuses on a controversial but very commonphenomenon, which is the homophonic name. In fact such phenomenon does not constitute aviolation of the right of name. So there is some controversy. There is a detailed analysis ofthe regulation of this type of problem from "The Trademark Law" and "The Anti-UnfairCompetition Law". Also they are currently the main basis when solving the problem. The last,there is a brief introduction of the relevant laws of Germany and Japan. The purpose is tolearn from other countries’ experience, so that we can have a deeper understanding of ourcurrent legal regulation.The fourth part is the defects of the legal regulation in "The Trademark Law" and "TheAnti-Unfair Competition Law"."The Trademark Law" does not good at the review processand the right protection."The Anti-Unfair Competition Law" as a public law has a lot oflimitations by the impact of the legislative purpose and the adjustment.The fifth part puts forward three suggestions for the problem. The first is the legislation ofthe trademark registration of name. The second is to further clarify the contents of the priorright. Third, it advocates the introduction of merchandising right. The establishment ofmerchandising right is the most effective tool to solve the abusively name registration ofcelebrity. This section focuses on the origin, the connotation and the significance of theintroduction of merchandising right. Merchandising right originated in the United States andgot a clear definition in Japan. Though there are some certain consensus in the academic areain china about merchandising right, the differences in meaning, connotation, basic nature areobvious. However, if merchandising right is used in the law, it will play an effective role inrestriction of the abusively name registration of name. Therefore, this advice is imperative.The sixth part is a brief summary, not repeated here.