Research On Legal Protection Of Virtual Character Commercialization Rights

Merchandising right of character is a kind of new type right appearing in themodern social economic life. After many years of market practice, we found that the combination of intellectual property and business, will create a more positive effect. This is not only a realistic demand to change the industrial structure of China’s economy, but also become an important support for the country to seek cultural soft power development advantage and discourse power. As a new member of the field of intellectual property rights, merchandising right has become an important means to improve the potential value of the cultural industry. The merchandising right could change that the potential cultural value into commercial value. The content of merchandising right is diverse, and constantly it will be enriched. In general, the merchandising right mainly includes image, name, shape, structure, action and even voice and phrases. This paper mainly discusses the related problems of fictional character merchandising right. As Engels expressed, the progress in the field of technology will always bring new benefits to the human society, and human beings have to use legal means to restrain it. When a fictional character becomes a favorable tool for profit growth, some businessmen seek nothing but profits. they theft others intellectual property, only to achieve their own economic interests. And the law is a powerful weapon to protect the intellectual property.In 1950’s, the concept of merchandising right of character originated in U.S.A. Then it was used widely for reference around the world. A lot of countries have admitted it in the laws and the legal precedents, and begun to protect it. However, throughout the domestic and international legal system, there is no legal system of country or region contain the merchandising right of fictional character. Most countries protection it through the existing intellectual property system. Some scholars believe that copyright law, trademark law and anti unfair competition law is sufficient, so it is not necessary to bring merchandising rights become a independent part. After the reform and opening up, China’s rapid economic development, more and more of the fictional character merchandising right infringement are cased, but we also understand this issue is an important problem should be solved.This paper is divided into five parts. The first part is the introduction, which mainly introduces the research results of this paper. Including the significance of the topic, the purpose of the topic, domestic and foreign research results have been achieved, research methods, research contents, innovation points and deficiencies. The first chapter mainly introduces the basic theory about the fictional character merchandising right, including explaining what is merchandise, what is the merchandising right, chose what kind of term and the definition and history of fictional characters merchandising right. The second chapter is mainly about the legitimacy of the protection of the fictional character merchandising right. The author fully proves that the protection of the fictional characters merchandising right is legitimacy and necessary from three aspects. These three aspects are analysis the theory of law, the angle of law economics and value choice. Because merchandising right are started late from our country, in the third chapter, the author compare the fictional character protection theory and practice of the Continental law system, Anglo American law system and three different countries find the advantages and disadvantages. The author use domestic laws and judicial practice to explain the disadvantages of the copyright law, trademark law and anti unfair competition law to protect fictional character. That will show us the necessity of fictional character merchandising right in the legal system of our country. In the last chapter, the author explaining construction of the fictional character merchandising right in our country. Including the improvement of the present stage of legal protection and the future development trend of China’s legal system. I hope that this paper can become a reference to speed up the improvement of our legal system.