Research On Protection Of The Fictional Character Merchandising Right

The concept of fictional character merchandising right originated from the United States in the 1950 s.Currently many countries yet recognize and protect this right through legislation or case law.The study on this right in our country started comparatively late and still does not generate relatively stable theoretical achievements.Also there are no explicit legislative provisions about this right.On account of the rapid development of the market economy the infringement acts against this right have become increasingly on the rise.The trial of cases in the judicial practice was not fair and unified for a lack of legislative and theoretical guidance and did not provide full protection to the legitimate rights and interests of the right-holders.This article takes fictional character merchandising right as a kind of new intangible property right,which is different from the traditional intellectual property rights.The existing legislation has many limitations on adjusting the legal relations of this right.It is advised to draft specific regulation to provide special protection for fictional character merchandising right.In addition to the introduction,this article is divided into five chapters:The first chapter studies the basic questions of this right and analyzes the nature of this right on the basis of defining its concept.This right should be viewed as a new kind of intangible property right.In order to build a whole theoretical framework the legal relations of this new right are discussed.The second chapter analyzes the protection necessity of this right.“Theory of fruits of labor” and “Theory of balancing interests” provide the legal basis for the production of this right.Both of the reality,the enormous economic value created by fictional characters and the surge of rights disputes,could confirm that the protection of this right has a practical significance.By means of comparative analysis the third chapter studies the related legal cases and theories in the United States and Germany.The legislation and judicial practice of this new right from both of the countries which are representative countries of the two legal systems are summarized,so as to provide reference for improvement of the system in our country.The fourth chapter elaborated limitations of our current legislations on protection of this new right.Since the traditional intellectual properties have different protection purposes compared with this new right,the mode of cross protection through copyright law,trademark law and anti-unfair competition law could not provide comprehensive protection for this right.The fifth chapter makes the suggestion of protection in stages.In the long run,since the special legal relations of this new right are beyond the scope the adjustment of the current legislation,it shall be regulated by specific provisions.In the near future,appropriate adjustments should be made to the regulations of the existing copyright law,trademark law,anti-unfair competition law for providing cross protection of this right.