Study On The Legal Protection Of Merchandising Of The Personality Right

In modern society, with the rapid development of economy and culture, and the continuous innovation of the business model, it becomes common occurrence to maliciously register well-known character’s name and portrait as a trademark and use it as the product name and in advertising. In many foreign countries, the commercialization of personality rights has been protected through legislation. Among them, the United States uses a separate property right protection mode, and Germany uses uniform rights protection mode.At present, China has not been clearly defined the system of the commercialization of personality rights. In judicial practice, the commercialization of personality rights usually are protected through the law of copyright law, trademark law, and unfair competition law. But above applicable law requires legal premise, as objects protected by copyright law is ingenious intellectual creations, objects protected by trademark law is a trademark, and unfair competition law protects market competition order. Therefore, the above laws only play an indirect role in protection of the commercialization of personality rights, and so its protective efficacy also has some limitations. "Civil Law" Article 100 confirmed from the opposite side that unauthorized using portrait of others are not allowed for commercial us, thus recognizing the personality rights contain the interests of property. "Tort Liability Act", Article 20, Where any harm caused by a tort to a personal right or interest of another person gives rise to any loss to the property of the victim of the tort, the tortfeasor shall make compensation as per the loss sustained by the victim as the result of the tort. If the loss sustained by the victim is hard to be determined and the tortfeasor obtains any benefit from the tort, the tortfeasor shall make compensation as per the benefit obtained by it. If the benefit obtained by the tortfeasor from the tort is hard to be determined, the victim and the tortfeasor disagree to the amount of compensation after consultation, and an action is brought to a people’s court, the people’s court shall determine the amount of compensation based on the actual situations. Thus it confirms the rules of compensation benefit. But when the infringer’s profits exceed the losses suffered by the infringer, it will lead to a strange phenomenon that the infringer will benefit in the end, so this kind of compensation rules still have some loopholes. Thus, the commercialization of personality rights disputes occur frequently unfair judgment results in practice, it remains to be formed a more systematic commercialization of personality rights legal system.The purpose of this article is to discuss empirically and doctrinally on the issue of the commercialization of personality rights, in order to promote establishing legal system of the commercialization of personality rights.