Research On Protection Of The Fictional Character Merchandising

In the process of rapid development and progress in society,good material living conditions can no longer meet the general pursuit of the public.The enjoyment and pleasure of the spiritual world has become an important part of social life.Therefore,the social and cultural industries are constantly enriched,and the excellent works presented in front of us are also increasing.These outstanding works have created virtual characters that are deeply loved and noisy by the public.Thanks to the unique image of the virtual character in the original work,the cute appearance and other factors,more and more virtual characters are used in the commercial field.This kind of use behavior that is not permitted by the creator of the virtual character is in the virtual character.There have been many disputes between creators and users.Up to now,China has not yet issued special regulations on the commercialization of virtual characters to deal with such disputes.It was only in the Provisions of the Supreme People’s Court on the Trial of Several Issues Concerning the Trial of Administrative Cases of Trademark Authorization and Confirmation in March 2017.It is involved.In judicial practice,because there is no specific provision that can be applied to avatars,the judicial judgment on this issue is not the same.This paper is divided into four parts.Firstly,the virtual character commercialization right is introduced.Then,from the legitimacy of the virtual character commercialization right protection,combined with the evolution of the judicial judgment attitude in the judicial practice.Thereby exploring the feasible path for the virtual character to be protected.The first chapter of this paper begins with a general introduction to the basic issues of the commercialization of virtual characters,which is an overview of the commercialization rights of virtual characters.The first is the introduction of virtual characters,including the concept of virtual characters,its components and classification;the second is the definition of the virtual character commercialization rights and the various phenomena and means of virtual character commercialization;finally,the virtual character products are elaborated.The origin of the issue of the right to power in the United States and Japan and the development of the commercialization of virtual characters.The second chapter mainly discusses the justification of protecting the commercialization right of virtual characters.On the one hand,it introduces the theory of labor value theory,incentive theory,market confusion theory and so on to support the protection of virtual characters’ commercialization rights and analyzes the limitations of these theories supporting the protection of virtual characters’ commercialization rights;On the other hand,it puts forward a series of basic rights such as personality rights,freedom of speech and reasonable use,which have reasonable limits on the commercialization rights of virtual characters.The third chapter mainly introduces the change process of the protection attitude of virtual character commercialization right in our judicial practice.That is,the refusal to protect in the fields of "Copyright Law","Anti-Unfair Competition Law" and "Trademark Law" was to protect the virtual character commercialization right in the case of trademark authorization and to continuously explore the protection basis.A typical case was introduced.The third section introduces the Supreme People’s Court’s first response to this issue in the Regulations on the Confirmation of Trademark Authorizations.It also means that the attitude of whether to protect the commercialization rights of virtual characters should be gradually defined in judicial practice.The relevant provisions of the “Equity” to adjust this interest,and made a certain evaluation of this judicial interpretation.The fourth chapter is mainly to explore the perfect path of virtual character commercialization protection.Starting from the solution of the virtual character type,the protection path of the trademark law is adopted for the virtual character that has been commercialized,and the virtual character is protected by the commercialization activity,and the trademark with certain influence is included;The avatars that have been commercialized but satisfy the originality,integrity,and certain visibility are protected by the Copyright Law,and are included in the protection scope of the property rights,thus solving the legitimate obstacles to the protection of virtual characters.