Research On Protection Of Merchandizing Right Of Anti-unfair Competition Law In China

With the continuous economic development, Merchandising Right turn out to be a new type of right that grows out of the promotion of commodity sales. In such developed countries as America and Japan, the research of Merchandising Right has been mature. America has stipulated the clear classification of Merchandising Right via realistic image (rights of publicity) and invented image (rights of character) but fell into the predicament of the laws that are applicable to existing rights of the publicity in state laws. It is because that many state laws do not acknowledge rights of publicity. In case of acknowledgment, the definition of these rights would be various. Nevertheless, Japan provides a definition deeper than America for the definition of Merchandising Right further illustrates one important features --- Customer Attractiveness. The definition is more comprehensive and accurate from the perspective of the features and the object of Merchandising Right. However, it is not enough to illustrate the definition from one feature. The object of Merchandising Right has the substantive characteristics such as attraction for customers, secondary development, commercial competiveness, duality, content ambiguity and negotiability. Therefore, the writer regards that Merchandising Right refer to the intangible property rights of achieving the secondary development of what are attractive to customers, with the purpose of boosting the market competitiveness. Up to now, the object of Merchandising Right should include figures, activities and symbolic objects.From the world, Merchandising Right haven't been made effective in legislation of every country. It is usually the case that some developed countries adopt legal system, such as Personal Law, Copyright Law, Trademark Law and Anti-unfair Competition Law, which provides various Merchandising Right with limited and dispersive protection. The system of rights of publicity in America is independent and mature in protecting the merchandising right of realistic figure image. However, it never means that our country should copy the system of America. Instead, it is urgent that our country should take into consideration its own characteristics and realistic situations, draw lessons from the relevant legal protection and means, and finally revise or draw up relevant laws and regulations. By now, there has not been any virtual research of Merchandising Right in Chinese laws or there hasn't been any stipulation of protecting Merchandising Right in legislation. In judicial practice, we can only make use of the present laws to provide Merchandising Right with limited protection. Because Personal Law, Copyright Law, and Trademark Law have their own flaws, there must be the blind areas with regard to the legal protection of Merchandising Right. The present Anti-unfair Competition Law has its own backwardness so that it could not provide with effective protection of Merchandising Right. The paper clarifies in the dispersive protection model respectively the realistic problems of judicial practice existing in Personal Law, Copyright Law and the Anti-unfair Competition Law and then introduces the optimal choice in the overall protection model. It puts forward the overall protection model based on the Anti-unfair Competition Law and justifies it in view of the following five advantages. The model conforms to the tenets of the Anti-unfair Competition Law; it conforms to the content of the Anti-unfair Competition Law; it provides with comprehensive legal responsibility systems; it resolves the research difficulty of Merchandising Right; it stabilizes the existing legal systems and reduces the cost of legislation. Finally, .it puts forwards some suggestions in response to the flaws of the Anti-unfair Competition Law in protecting Merchandising Right, in the hope of providing new thoughts on the protection of Merchandising Right.