The Protection Of Merchandising Right On Title Of Work

Since the 1980s,disputes concerning the title of work have continued to occur.The law has not made explicit provisions on the resolution of such incidents,and academic circles have not reached a consensus on it.In the case that copyrights law,trademark law and unfair competition law cannot provide effective protection for title of work,along with the introduction of theory of merchandising rights,some scholars put forward a new way to protect title of work through merchandising rights.However,based on the uncertainty of merchandising rights,the academic and practical circles are divided on the feasibility of this way.Earlier Chinese court judgments also did not recognize merchandising rights.They believed that it was not a legal rights and its content was not clear.However,with the continuous occurrence of disputes related to merchandising activities,courts have gradually begun to recognize the rights to merchandising.The status of merchandising rights being protected by the judiciary has made the concept of merchandising rights widely accepted.Rights holders who cannot claim their rights in the existing legal departments begun to advocate the merchandising right on title of work.In 2015,Beijing Higher People's Court confirmed merchandising rights in the "Kung Fu Panda" case for the first time,and confirmed that "Kung Fu Panda" had merchandising right as the title of the famous movie at the same time.In December 2016,Supreme People's Court passed the judicial interpretation of"Provisions of the Supreme People's Court on Certain Issues Concerning the Trial of Trademark Authorization and Definitive Administrative Cases".Article 22(2)of this this judicial interpretation stipulates:"For works within the copyrights protection period,if the title of the work,the name of the character in the work,etc.are of high popularity,using it as a trademark on related products can easily lead the relevant public to misunderstand that it was approved by the right holder or has a specific connection with the rights holder,if the parties claim to constitute prior right,the people's court shall support it." Some scholars believe that this provision establishes the merchandising rights of the title of work,but some scholars also question the legitimacy of the merchandising rights of title of work.In view of the unprecedented prosperity of the cultural industry and the continuous expansion of the derivative interests of famous works,right holders of the merchandising right of the title of work will be inclined to develop the commercial use of the title of work.Free riders want to use the title of other famous works to attract attention,and the desire for using will become stronger,too.Undoubtedly,the titles of well-known works will continue to trigger people's attention and scramble,and the related disputes will increase in the future.It is necessary to clarify the issues related to the merchandising right on titles under the legal context of our country in order to provide some ideas for dispute resolution in more relevant judicial practice.This article is divided into five parts.The introductory part briefly introduces the origin and development of the the merchandising right of the title of the work,pointing out the legal protection problem of the merchandising right of the title of work should be clearly defined from the academic argumentation on the merchandising right of the title of work and the related judicial practice.The first chapter defines and classifies the title of the work,and analyzes the necessity of the legal protection of the title of the work,especially for the titles of famous works.Analyzing the definition,nature and legal relationship of the merchandising right of the title of work from the general theory of merchandising right.Clarifying the relationship between the title merchandising right and copyright,trademark right and against unfair competition through case analysis from the perspective of judicial practice,pointing out that this laws cannot provide adequate protection for merchandising right of the title of work.The second chapter discusses the legitimacy of the rights to merchandising of the title of work from the three aspects of protection of labor pay,encouragement of innovation and cultural dissemination,resolution of title of work infringement disputes,unification of judicial practice,and saving of judicial resources.Giving response to the view that the merchandising right on title of work is illegitimate,clarifying that the merchandising right of the title of work shall be an independent rights.Pointing out it is proper to use trademark law and anti-unfair competition law to protect the merchandising right on title of work under the situation that the system of merchandising rights is not mature.The third chapter analyzes and evaluates the infringement determination,infringement remedy and protection limitation of the merchandising right of the title of work under the legal context of our country.Proposing that the "identifiable"infringement identification standards should be implemented slowly in the future.Pointing out that protection period of the merchandising rights of the title of work should not be limited based on the infringement standards of avoiding confusion and misrecognition that courts have adapted.Recommending Copyright Collective Management Organization to adopt the practice of the MPAA Title Registration Bureau under the background of a diversified dispute resolution mechanism,establishing the registration system,arbitration and conciliation procedure of the title of work to settle title of work disputes and regulate the development of related industries.The fourth chapter concludes the thesis,points out that there will be more disputes about the title of work in the future.At present,the comprehensive use of trademark law and unfair competition law to protect the merchandising right on titles is safe,but in the long run,there will be a lot problems.In addition,the "Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Trademark Licensing and Definitive Administrative Cases" is only a judicial interpretation,the merchandising right of the title of work is still in an awkward status of illegally defined right or typed right,and it is expected that the court can further promote related legislation through judicial practice to confirm the legal status of merchandising right on title of work.