Protection Of Merchandising Right And Interests From The Perspective Of Anti-unfair Competition Law

From the "five golden flowers" case to the famous "Jordan" case,to the "Kung Fu Panda" case in recent years,the elements of natural person personality,literary,film,videotape and animation works gradually separated from the human body and the original works,gaining independent market and business value.The theoretical and practical circles are gradually aware of the urgency of the protection of merchandising rights and interests in China,and strive to explore the rational path of the protection of commercialization rights and interests in China,and gradually form two major trends: independent right and expanded interpretation of existing rights theory.However,scholars draw on the separate legislation of extraterritorial merchandising rights,but lack the complete theoretical foundation of independent rights and the appropriate legal environment.There is no theory to support it and it is difficult to promote the corresponding legislative and judicial processes.Expanding interpretation of the existing personality rights law,the contents of object of intellectual property law,and trying to incorporate the merchandising rights object into the scope of relevant legal objects,it is still impossible to completely cover the object of merchandising rights?But,The theoretical system of the original rights would be changed.In view of this,this paper considers the protection of merchandising rights from the perspective of anti-unfair competition law,considering the nature of the commercialization behavior of the operators,and evaluates the illegality of the commercialization behavior of the perpetrators.Provide parallel protection.In addition to the introduction and conclusion,this article is divided into four parts:Part?:the general interpretation and situation of conservation of merchandising rights.First of all,according to the equity differentiation theory of rights and interests,although the commoditized rights itself does not fit the conditions of becoming the independent right,the part of the objects which can be identified the legal rights should be protected by law.At the same time,according to the provisions of Article 2 of General Provisions of the Civil Law of the People's Republic of China,the merchandising rights are indeed within the scope of civil interests.Especially in the field of competition,merchandising rights and interests can bring huge competitive benefits to operators.Scholars generally recognize that merchandising rights and interests are interests that should be protected by law.merchandising rights can be seen as a aggregation of rights and interests,both the content of statutory rights and the interests that should be protected.Although the merchandising rights have't formed a systematic theory,the protection of merchandising rights has already appeared in theory and practice.Protect the tangible benefits of real characters and character images by confirming the property attributes of the content of personality rights.The virtual character image and and elements of the work are regarded as unregistered trademarks,and the creator have prior rights according to the provisions of Article 32 of the Trademark Law.Part?:the analysis of the rationality of the anti-unfair competition law to protect the merchandising rights.First of all,the merchandising rights also have the characteristics of rights and interests,and the contents intersected with the rights of personality rights and intellectual property rights.Although the existing rights protection methods solves the problem of merchandising rights in some cases,it can only be expressed as a individual success in that case,and it cannot form a normative and universal conclusion.Secondly,the commercial use behavior of merchantable objects is a market operation behavior and is the object of adjustment of the anti-unfair competition law.The anti-unfair competition law can estimate the commercial use behavior of the actor from the perspective of the estimation of the legitimacy of the behavior and protect the rights of other operators and consumers.Finally,according to the needs of judicial practice,the protection of merchandising rights mainly depends on the relevant norms of the personality rights law and intellectual property rights.The Anti-Unfair Competition Law has always been a supplementary remedy for intellectual property law,.Therefore,in the judicial practice,when the relevant provisions of the intellectual property law are used to deal with the obstacles to the protection of merchandising rights,the anti-unfair competition law is a supplementary relief that the infringed person can seek.Part?:the dilemma of China's application of anti-unfair competition law to protect merchandising rights.The dilemma of application of the anti-unfair competition law to protect merchandising rights includes the following aspects: in the macro aspect,in order to prevent the excessive interpretation of unfair competition behaviors from hindering the normal development of the market,China has always placed the anti-unfair competition law in the supplementary status of intellectual property law.Therefore,it fails to realize the positive role of the anti-unfair competition law of protecting merchandising rights;at the micro aspect,there are some theoretical restrictions on the anti-unfair competition law itself,such as the theory of competitve relation narrowly defined that hinders the identity of the operators.there are still theoretical disputes and practical problems about regading article of the Anti-Unfair Competition Law as a general clause.The specific provisions of the current Anti-Unfair Competition Law explain the illegality of the actor's commercialization.Part?:to improve the concept of China's merchandising rights and the protection of unfair competition law.Corresponding to the problems mentioned in above analysis,the paper proposes to construct a systematic theory of protecting merchandising rights with anti-unfair competition law:in macro aspect,establish parallel protection theory between anti-unfair competition law,personality right law and intellectual property law.First of all,in the process of research and establishment of specific systems,the parallel protection function of anti-unfair competition law should be considered.Victims can seek relief from rights laws such as personality rights and intellectual property rights law,or directly invoke relevant provisions of anti-unfair competition laws.Secondly,the court should also relize the positive role of anti-unfair competition in adjusting the market behavior of the operators in the trial process,and consider the legitimacy of the behavior of the actors from the perspective of the market.On the micro level,the corresponding solutions are proposed to solve the problems faced by the anti-unfair competition law in the specific application process.By expanding the interpretation of the theory of competitive relations,it is difficult to solve the problem that the narrow competitive competition leads to the failure of the identification of operator status.Restate the relevant content of Article 6 of the Anti-Unfair Competition Law and establish the specific criteria for the identification of the infringement of commercial rights and interests.It also introduces the theory of rights violations and unjust enrichment,and refines the compensation standards for damages caused by merchandising rights.