Intellectual Property Protection Of Character Merchandising In Animation Industry

Animation industry is an important part of the creative culture industry,in recent years Chinese original animation has gained rapid development under the promotion and support of governmental policies,resulting in the emergence of a great number of China-made animation with really high quality and also high profile.At the same time,however,various essential factors of the characters in those well-known animations such as the image of a character which contains great business attraction and can be developed into significantly valuable Commercial Symbols through commercialization has Attracted Attention from different sectors.Thus,disputes on the commercial use of characters in animation including manufacture and selling pirated animation derivatives and cyber squatting take place frequently.In China's current judicial practice,the right of character merchandising in the animation industry has usually been protected by copyright law,trademark law and other specific laws and regulations within the frame of intellectual property law in accordance with actual situation of various cases but it is not satisfactorily for solving all kinds of problems in practice for there are still a large number of both blanks and overlaps within the protection of intellectual property law.In the recent case "Kung Fu Panda" trademark dispute,the court for the first time clearly recognized and also discussed character merchandising,which has been one of the major innovations of Chinese judicial practice on the protection of character merchandising right.Besides,in March this year,the Provisions of the Supreme People's Court on Several Issues Concerning The Trials of Trademark Authorization and Administrative Cases,which prescribes the rules about previous copyright,character image and character name in a work came into effective.It can be seen as the recognition of the character merchandising right in the animation industry from the legislative point of view.Both the abovementioned reflect the progress on protection of character merchandising right under current IP system in China.Nevertheless,there are still some areas out of the IP law's reach during the application of specific IP laws and regulations into protection of character merchandising on account of the openness of that right and also the diversity of the way of infringement in reality.This essay attempts to analyze the shortcomings of the existing protection methods and to explore how to further improve the protection of the model,in such a situation in which the general direction has been determined.On the research of the issue about character merchandising in the animation industry,different countries stick their own views on the concept and also the range of this right.For example,in the US,the right in character,which is derived from the right of privacy and then the right of publicity,was carried out from the previous two and evolved separately due to the development and growth of the animation industry and thus the independent protection of right in character was of great necessity.The role and scope of the commercialization of the role of the United Kingdom and the protection model is slightly different from the United States.There are slight difference on the concept and also range of right in character in the UK compared to that in the US.To some extent,the British theory about character merchandising choose an opposite direction against the common law right of privacy which has no relationship with commercialization of the essential factors of a character,the starting point of character merchandising right protection is how the commercial value of important business activities is reflected on the law side.In China,the research on character merchandising is mainly influenced by the United States and Japan as well.Therefore,the main research results on the specific character merchandising right in the animation industry are mostly discussed with other kind of merchandising rights as a whole.Considering this background,Some scholars follow the American pattern,suggesting that we should use the theory of right in character to protect the commercialization of both well-known real person and also fictional character.And some scholars hold to summarize the essence of merchandising rights as kind of reputation and draw a line between merchandising rights and various intellectual property rights within current IP regime.Besides,some others discusses the specific method of protecting the merchandising rights and other interests belong to the owner of the cartoon characters from the perspective that both trademark right and character merchandising right share an approximate function.In general,the current mainstream theoretical point of view on this topic usually starts from the United States model-the application of comprehensive protection within the whole IP regime-and also advocate to seek adjustment and improvement of specific laws and regulations among the existing legal framework.Character merchandising right in the animation industry has long been discussed as part of the general merchandising right,leading to the ignorance of the distinctiveness in that very right.In consideration of that,this essay attempts to locate character merchandising right in the animation industry in the system of merchandising rights as a whole and focus on the form of the rights and its protection model to discuss the protection of this specific right under the specific industrial form and to provide some targeted suggestions to solve problems of infringement which appear frequently in practice.This essay will start from the introduction of the industrial division of the animation industry itself and then move on to the definition of the right and the construction of the protection mode in different countries such as UK and the United States and also international organization,focusing on the small area which is the character merchandising right in the animation industry.In the process of writing,the writer intends to use the methods of literature research,comparative study and systematic research to analyze the theoretical and practical achievements of the protection of character merchandising right in the animation industry as well as the problems and differences in this field,both domestic and abroad.Also,the writer will use the laws and regulations judicial precedents,indicative documents of the United States,the UK and intellectual property organizations as a comparative materials to summarize the way of how to gain development and improvement on the protection character merchandising right in the animation industry under the regime of intellectual property law based on the current situation and future development of judicial practice in China and the Reference to various International experience.