On The Legal Protection Of Animation Character's Merchandising Right

Animation is a combined conception of cartoon and menga. Once animation characters become famous and charming, consequently they're used in commodities and services by shrewd businessmen. Thus, an animation market is completely composed of the original copyright market and the new merchandising one. Now, aiming at establishing and perfecting industrial chain, animation industry is developing rapidly towards the goal of "industrialization" and "globalization". Animation industry has been recognized by the international community as "the core of the 21st century knowledge economy industries" and "the most promising sunrise industry in 21st century". However, as the animation economy heats up, theft and misuse and other kinds of tort of animation characters has become increasingly serious. Since Animation Character's merchandising right is a "secondary exploitation" rights, based on the commercialization of the animation works, the existing laws don't have any clear and definite rule to punish such behaviors which are obviously not conducive to the healthy development of animation industry.So, in this paper, I start my study from the analysis of the commercialization process, then introduce and comment on the main mode of protection based on the existing framework of intellectual property law. After this, I try to give an advice that we should forge a new protection mode. In such a mode, there's an independent legislation of animation Character's merchandising right, with the integration of the national and enterprises' intellectual property strategic plan. What's more, we must concentrate on the perfection of the law enforcement and judiciary.The whole paper has been divided into four parts:The first part is introduction of animation Character's merchandising rights. What is animation and animation character, where character merchandising began? I answer them first, and then analysis the necessity of the protection of such merchandising rights, pointing out that China's animation market is confronting both opportunities and challenges.The second part is introduction of the existing intellectual property rights protection mode. Because previous studies never engaged in the legal form of animation market, I think that is a unique achievement to do such an analysis. Next, from four aspects (the Copyright Law, Trademark Law, Anti-Unfair Competition Law and Design Patent), the paper summed up the existing main protection mode within the framework of intellectual property law in the world.In the third part, I point out the defects of the four models above. Copyright model has theory defects. Trademark model cannot shake off the obstacles of reality and law. Uncertainty and ambiguity hurt Anti-Unfair Competition law. As to patent, there're short protection period and some practical disadvantages.The fourth part is the soul of this paper. In this part, I point out that building a powerful independent protection mode is necessary. Starting with the meaning, protection conditions, rights contents, duration, how to definite torts and relieves, I lays out a complete image of animation Character's merchandising right. Next, from the strategic height of intellectual property rights, I suggest that the government should bear the responsibility and enterprises should take measures to protect themselves. Finally, I give some three advises on law enforcement and the justice.