Right Protection On Merchandising Personality

With the development of social commodity economy, symbols that are used to describepersonality (such as name or designation, portrait, voice, etc.) have been widely applied inbusiness. Personality symbols in commercial use has lead to more and more infringement andrights protection events, which has draw an extensive attention from the society and the law field.As we can see from the processing of personality merchandising rights infringement cases byChinese judicial practice, compensation mode of victim’s economic losses usually adopt mentaldamage compensation method. It is obvious that the two are opposite, while the compensationmethod lead to not only inaccurate qualitative diagnosis but also inappropriate methods ofbearing civil liability. Civil law protection problem caused by personality symbols in commercialuse has become a new topic in today’s civil law research.This article, firstly introduces some typical cases, and then leads to the problem-theproblem of personality merchandising rights protection. Concept analysis is used to define theconcept of personality, personality symbols, personality merchandising and to expound thesignificance of personality merchandising. The paper further analyses the legal relationship ofpersonality merchandising contract to clear that when personality right holder signs personalitymerchandising contract, the right holder only empowers the right of commercial use ofpersonality symbols to the user, rather than assign privilege. The author uses comparativeanalytic method to elaborate the two typical representatives of personality merchandising rightsprotection in Anglo-American law system and civil law system--public rights protection systemin the United States and Germany theory of unified protection rights. Then personalitymerchandising rights protection theory of current China is elaborated in detail: merchandisingrights theory, intangible property rights theory, personality rights theory. The author thinks theformer two theories fail to satisfactorily explain the basic problem of personality symbols incommercial use, and the consequences of the weak theory is that non-beneficial guidance isprovided to the judicial practice. Likewise, the right protection mode of personalitymerchandising in current China is conflict with the current civil law structure system, somehaven’t protect enough, some legal effect is not good. Based on the former theoretical analysis, the author combines with protection system theory both at home and abroad, puts forward thesuitable personality merchandising rights protection method for China’s national conditions-first,adhere to protect personality merchandising rights within the framework of personality rightprotection, and second, to protect the economic interests of personality merchandising from theangle of stopping infringement benefit. Third, the use of unjust enrichment system effectivelysolves the problems of personality merchandising in theory and in practice. The final conclusionis the summary and sublimation of the content of this paper.