Merchandising Right And Its Protection By Law

With the diversification of merchandising movement, the new right of merchandising becomes more and more important in our society. Practically, by putting favorable merchandising elements into commercialization, the acceptance from customers is greatly increased and profits grow fast. However, because of lack of regulations in our country, disputes in merchandising can't be resolved reasonably, which makes people feel that the remedies which are ought to be recovered can't be supported by law. In order to change this social psychology, the right of merchandising should be established as soon as possible, which can not only develop the culture of dealing in honest, but also give a new way to sustain the right of personality and intellectual property. In this dissertation, from the conception to the protection by law, some suggestions on the establishment of the system of merchandising right in the legal framework were given.On the base of lots of literatures including cases, theses, works in our country or overseas, and by arguing pro and con, l propose the right of merchandising is the right to commercially use the merchandising elements which are favorable or can be favorable. And the favorable merchandising elements are not the famous elements, however in other theses they are always considered the same, for favorable judgment is made by merchants but the other by judges. If we give them the same meaning, then the judicial decision may affect the risk of commercial judgement, which would disorder the commercial rules. In this way, despite favor is the nature of merchandising elements, in law merchandising elements are the ones can be easily identified and have been protected by law.The owner of merchandising right is the same with that of the civil law, that is, all nature persons and artificial persons can own the right. Because merchandising right is set to protect personality and intellectual property in a commercial field, each one who controls of specific personality and intellectual property controls them into market.Under the insufficient protection by current substantive laws, merchandising right should be departed from Anti-Improper Competition Law. As one in the family of intellectual property right, merchandising right is also subject to principles such as fair use, exhaustion of right, restriction in conflict of rights, duration to be protected and so on.To protect the merchandising right more strongly, indirect model should also be included in the infringement of merchandising right in future law. Moreover, the compensatory damages are to be based on the market value of the merchandising element, and in the same time putting the commercial profit of the obligor into consideration. By this way the aim of sufficient remedy of the obligee can be achieved. This dissertation consists of two parts:Part one: By tracing the development of the right, and by analyzing the subject and object of the merchandising right, the definition of merchandising right is given.Part two: By analyzing the legal insufficiency and defects in the protection of merchandising rights by current substantive laws, some opinions and suggestions on merchandising right in future law- making were given, including the content, restriction and infringement of the right.