The Discussion On Merchandising Right

Merchandising right is a kind of new-type right appearing in the modern social economic life. Study on it doesn't finalize the design yet abroad and start just in China. The question of merchandising right originated from Britain and America. It was mainly a right that can be established and developed in the legal prejudication. In our country, it still belongs to a kind of right legal benefit but not real one, so the copyright-mode and copyright-centered comprehensive protection is adopted in the judicatory practice. But with increasing various kinds of relevant dispute day by day in actual life, facing this problem,existing civil right system seems unable to deal with. Some scholars put forward to introduce concept of "merchandising right" in our country's existing legal system, then a lot of questions are very easily solved. But because this is a new-type right appearing in modern social economic life, the foreign justice only has several decades of history to discuss this, but this is touched only in our country's theory and practice circle. Therefore, it is necessary to systematically study the concept , content , object , right type ownership , coincidence and conflict with other civil right , and position among our country civil right system of merchandising right . To combine the definition of the merchandising right concept by domestic scholars, in my view, the so-called merchandising right refers to intangible proprietary used commercially to contain business reputation, role or role's characteristic and other images factor worth circulating. Particularly, merchandising right has three main kinds such as true personages' merchandising right, make-up the role's merchandising right and merchandising right of other images factor; including merchandising right people's utilizing right, permitting others' right to use , and forbidding right etc. . Most scholars hold a view--defining merchandising right as intellectual property right, which bases on merchandising right with common characteristic of intellectual property right, so merchandising right is an intellectual property right. It is worth deliberating this conclusion on the basis of this. Because this demonstration course has violated the most basic logical thinking law: definition rule should induce and abstractly summarize on the basis of researching the targeted definition and draw out its most essential characteristic, thus confirm its attribute. And above-mentioned view is invalid to conclude its attribute in a situation that there is no clear extension of merchandising right, only according to some characteristics of merchandising right. In addition, merchandising right should not belong to the category of intellectual property right. There are deeper reasons: First, in term of establishing purpose of right, the purpose of intellectual property right lies in encouraging creation, protecting work fruit, promoting abundance of social wealth; but merchandising right aims to prevent business reputation from being usurped so as to obtain unjustified enrichment and safeguard the balance of private interests.What the former one advocates is civilization and progress; what the latter pursues is fair and rational. Because of this, the two have different construction system. Second, in term of protecting the object of right, the object of the intellectual property right is a intelligence achievement, concretely including works, trade mark, invention, practical new-type and appearance design, etc.; but the object of merchandising right is the business reputation. Third, in term of protecting the content of right, the intellectual property right stems from the intelligent achievement. It is a kind of special right form, which includes property right and spirit right; and the production of merchandising right is based on improper benefit usurping others or creating roles'image characteristic, but obligee isn't paid back. Therefore, the main content of merchandising right lies in protecting the economic right, but not protect spiritual right. So, in my view, with changes of developing modern commodity economy and the form of social wealth, property will turn into invisible and intangible more and more. The right, not considered to be property or property right traditionally, should obtain more and more concern and protection. Herein, I agree with the view--"in studying civil law, setting up an invisible proprietary system greater than range of intellectual property right", in order to contain all rights produced by non-material form. Namely epigenous concept system of "invisible proprietary "will be set up on the intellectual property right and put merchandising right into it.For the status of merchandising right in our country's civil right system, it is necessary to draw a conclusion comparing with other rights. Because merchandising right still belongs to a kind of real legal benefit but not right legal right at the present stage of our country, so the comprehensive protection means will be usually adopted in the judicial practice including personality right, copyright, trade mark privileges and law against inappropriate competition. It is obvious that the content of merchandising right traverses a great deal of law departments and right fields, but there is not its own independent field. In this current situation, if establishing this right in the existing legal system, certainly will lead to the fact that it mixes with personality right, the copyright and other rights, it seems to violate to economize legislative resources and simplify the lawsuit cost. But compared merchandising right with personality right, copyright, trade mark privileges and phase comparative analysis of law against inappropriate competition, it will find that merchandising right has vacuum blind area that other rights had no way of adjusting even more mixing with the coincident conflict areas. Because of this, the establishment of merchandising right has a necessity and realistic meaning . On the basis of analysis of preceding paragraphs between merchandising right intension and right of type, I will sum up here, so as to put forward some beneficial suggestion about Chinese legislation design of merchandising right. The special legislation to adjust in a short time will offer academic reference for judicial practice and theoretic foundation for the obligee's safeguarding the rights:...