A Study On Protection Of A Work's Title By The Merchandising Right

The well-known proposition that "the spirit of law is the ownership" states the primary purpose of law is to define the ownership and property right. As the society develops; it makes the new property form surface. It is quite critical of the discussion of the property and its legitimacy and reasonableness. This point is of great significance in recent years' intellectual property field. This article starts from the infringement of Five Golden Flower copyright and unfair competition case, centering on the core issue of "if the title of a work can be applied in the business field irrelevant to the work without the authorization of the author, with the guidance of the Utilitarian Principle, deliberates that the author shall have the proprietary rights in a well-known work and defines this proprietary right as the merchandising right. Premised by the distinction between well-known works and general works, the merchandised use of the name of the well-known works shall be legally protected under the merchandising right theory.This article has 7 parts.The preface part briefs the Five Golden Flower case, claim and the verdict of the court and come up with the solution as to the core issues.,Part 1 is commenced with the theory of Utilitarian Principle and deliberates the necessity of legal protection for the merchandised use of title of well-known works. 1, The title of a famous work has the merchandising nature which is beyond the copyright domain. 2. Thelegislative intent of special protection to the well-known trademark shall be applied also to the protection of title of a well-known work. 3, It is the condition for the promotion of brand and institutionalization of market to protect the title of a well-known work. 4, The judicial protection of merchandised right of artificial figure will be borrowed to the protection of such right.Part 2 deliberates the current type of law and civil rights can not provide sufficient protection for the title of a well-known work from the copyright, trademark and anti-unfair competition law.Part 3 introduces the definition of merchandising right from the actual needs of merchandising right, economical theory and legislative and judicial technique and the necessity of the protection of title of a well-known work.Part4 focuses on the general theory of merchandising right including the definition of mechanization, definition of merchandized rights, subject and object, content and legal nature of it, as well as the distinction between the merchandized right and other civil rights as trademark, copyright and image right.Part5 discusses 4 questions in this protection process; they are the judgment of subject of merchandising rights, the judgment standard of name of well-known works and the judging authority.The final part deliberates that the time is still not mature to make the independent legislation for the merchandising right and advise that we can revise the copyright law to protect the merchandised right of name of well-known works with 3 points raised.1. In the regulation of property right of copyright. The right of merchandized use is added.2. The copyright administrating authority in state council shall be in charge of the titles of well-known works nationwide. 3. In the infringement behavior in the copyright law, weneed to add: "Without authorization of copyright holder, use the name of well-known works in other business field."...