On The Judicial Protection Of The Merchandising Rights And Interests Of Work Titles

The titles of well-known works enjoy the potential commercial value of being put into secondary development and have become the object of trademark squatting.In recent years,the judicial system in China has conducted extensive and in-depth exploration on the protection of the merchandising rights and interests of work titles in trademark authorization and confirmation cases.After summarizing and refining the judicial experience,the Supreme People's Court enacted the Provision on Several Issues Concerning the Trial of Administrative Cases on the Authorization and Confirmation of Trademark(hereinafter referred to as the Provision),and of which the Article 22,Paragraph 2 states the protection rule of the merchandising rights and interests of work titles.The introduction of the Provision,however,has not completely solved the existing problems in the protection of the merchandising rights and interests of works titles.The protection rule requires further explanation on some specific concepts,which becomes the key to the improvement of the judicial protection of the merchandising rights and interests of work titles.The thesis contains three parts as follows.The first part mainly provides a general overview of judicial protection of work titles' merchandising rights and interests,including the growth of the judicial protection from the 1990 s through the present and the current rule of judicialprotection.The judicial practice represented by the case of KUNG FU PANDA and How to Train Your Dragon has made an arduous exploration on the protection of the merchandising rights and interests work titles.The Article 22,Paragraph 2 of Provision specifies the protection rule for the work titles' merchandising rights and interests.First,to be the object of the merchandising rights and interests,a work title is supposed to enjoy a relatively high level of popularity,and the work itself needs to be within the term of copyright protection.Secondly,the scope of protection is limited by the possibility of confusion.Although the basic framework of the judicial protection has been formed,it still requires further interpretations.The first issue is how to interpret the concept of work titles' relatively high popularity.The second one is whether the precondition that the work whose title seeks the protection is supposed to be within the term of copyright protection is reasonable or not.The third one is how to define related commodities.The second part mainly discusses the nature of the merchandising rights and interests of work titles.First of all,stimulating innovation and protecting intellectual and capital investment are not its legitimate grounds.The foundation of its legitimacy is to avoid confusion,which is related to the function and nature of work titles.The natural attribute of work titles is the name of the commodity,and the commodity it marks is the work.After the publication of the work,loved by consumers,its title no longer merely plays the role of marking goods,but establishes a stable correspondence with the copyright owner of the work in the cognition of the relevant public,which means the significance of the trademark is obtained.In this sense,the title constitutes unregistered trademarks.Therefore,its merchandising rights and interests constitute the rights and interests of commercial marks,which does not presuppose that the title of the work has been redeveloped.Due to the specific characteristic of the work as a commodity,the merchandising rights and interests of work titles also have the nature of derivative rights and interests of copyrightThe third part mainly focuses on the reconstruction of the judicial protection of the merchandising rights and interests of work titles.First of all,“relatively high levelof popularity” should be understood as a “stable correspondence” between the work and its providers.Secondly,if the term of copyright protection of the work has expired,the copyright owner of the work will lose the basis of authorizing others to use the title of the work.Therefore,when others put the name of the work into commercial use,there is no likelihood of confusion.Thirdly,the protection scope,i.e.the commodity category covered by the relevant commodity,can be determined hinging on whether the owner of the merchandising rights and interests puts the titles of the work into commercial development.When the work titles have not been put into secondary development,its popularity derives from the work itself.When a stable correspondence exists between the work and its provider,“relevant commodities”refer to the same or similar commodities of the work.To be specific,whether a commodity belongs to the similar commodities mentioned here should be judged by whether it has a derivative relationship with the work.When the work titles have been put into secondary development,that is,when the work title is used as a trademark outside the original performance field,if the title of the work as a trademark has agglomerated popularity of a relatively high degree,and the consumers has established a "stable correspondence" between the title of the work and a commodity provider,then the scope of protection can also be extended accordingly to the "same or similar commodity" of the said commodity.