Research On Legal Protection Of Merchandising Rights Of Virtual Character

On August 20,2015,the Beijing Higher People's Court made a judgment against the appeal of the Dream Works Animation Film Company with the Trademark Review and Adjudication Board.The judgment clearly stated the concept of “merchandising right” and specifically pointed out that two aspects need to be considered when judging an application for registration of a trademark.Firstly,virtual character's visibility and influence.Secondly,the possibility of misunderstanding.Merchandising rights of virtual characters,therefore,have caused extensive discussion and become the focus of discussions once again.Various mainstream media such as China Courts Network,China Youth Network,and Tencent News Network have paid attention to the case above.The merchandising right of a virtual character is a new type of equity that created to promote salest.It originated from the right of publicity in United States,developed into Japan's merchandising right,and finally reached China.The judicial practice in the United States is using a cross-protection model with copyright law,trademark law,and anti-unfair competition law to protect merchandising right.Japan's description of merchandising right is more in-depth and further points out the important feature of virtual characters: customer attraction.In judicial practice and academic theory,the protection target of merchandising right is expanded to include the natural persons,things and virtual characters,etc.From a worldwide perspective,the merchandising right of virtual characters have not yet been universally recognized by legislation.Using various law to provide limited decentralized protection for merchandising rights is a common method adopted by some developed countries.With the spread of information and market economy competition,some savvy companies use the names of the public's favorite film and television works,comic books and fiction to register as trademarks,or print character on goods to obtain economic benefits.With the in-depth development of the socialist market economy,disputes over the merchandising right of virtual roles has frequently appeared.Such as the early cases about Sanmao and Altman,and in recent years like the Bond 007,the Kung Fu Panda and the team Beatles.The research on merchandising right of virtual characters have gradually attracts attention from academic community.But it is a newtype of right and the exploration of many issues is still immature.Not only is there no mature model of legislation,there are still a large number of outstanding issues in the theoretical study.In academic community,opinions vary about what on earth kind of legal regulation methods on merchandising rights should be adopted,and there is even no consensus about the definition of merchandising rights,which makes the right descend to be what Mr.Zheng Chengsi called “marginal field”.Intellectual property laws have not yet clearly regulated the merchandising right of virtual characters and the only reference is the recent judicial practice.However the judge made the decision without legal mandate,although the purpose was to adapt to the new situation in the ever-changing market in which virtual character disputes are in urgent need of regulation,it still was criticized for freely breaking the ruling basis and violating the judicial restraint.In the process of development of virtual character,the role of merchandising right gradually evolved from the subsidiary right to personality,copyright,and trademark rights to the independent path.And its role in the development of economic development culture is self-evident.On the one hand,commercial applications of virtual characters are constantly growing through the development of the market economy.On the other hand,disputes over the merchandising right of virtual characters in the judicial practice are also increasing.In order to reduce such disputes,in compliance with the relevant legal provisions and the original intention of judicial protection of intellectual property rights,it is necessary to legally regulate the merchandising right of virtual characters.However,according to the existing legal system in China all has blind spots when protecting the virtual characters.It is impossible to give full protection to the merchandising right of virtual characters.Therefore,it is necessary to establish the right to protect the merchandising right of virtual characters.To establish the right to protect the merchandising right of virtual characters,and to fix the subject,object,object of protection,and term of protection of merchandising right in the form of laws,is conducive to the establishment of a relatively clear boundary between the identification and remedy of the infringement of the merchandising right of virtual characters,and will also assist judicial practice makesmore unified and convincing decisions when dealing with merchandising right and interests disputes.It can be foreseen that merchandising right and interests will go further along the road of commercialization and industrialization.Under the unified regulation of scientific and reasonable legal provisions,the industries involved in the commercialization of virtual characters will move in a more rational direction.Development,and further feedback on the creation industry of virtual characters and then create a virtuous circle.