Research On The Protection Path Of Merchandising Rights Of Work Elements

The emergence of merchandising rights of work elements marks that China’s commodity economy has developed to a new stage.The appearance of the merchandising rights of work elements also represents the corresponding competition mode has emerged in the market competition.In addition,in the market competition,disputes involving the merchandising rights of work elements are constantly increasing.These disputes are the inevitable result of the development of market economy.The judiciary should respond to these disputes.The merchandising rights of work elements is not a legal right,but this does not mean that merchandising rights of work elements is not worth protection.The merchandising rights of work elements is not a single rights and interests,but an equity group.The merchandising rights of work elements actually points to the intangible financial right of goodwill,and is a legitimate rights and interests worth protection.At present,the protection of the merchandising rights of work elements in China depends on the parallel protection of each legal domain,and there is no hierarchical protection path.In order to provide comprehensive protection of merchandising rights of work elements,it is really necessary to build a set of clear and logical and self-consistent protection path of merchandising rights of work elements.At present,the protection of merchandising rights in China mainly depends on trademark law and copyright law.In the trademark law,in addition to the registered trademark system,the protection of merchandising rights of work elements mainly relies on Article 8,paragraph 1 and Article 32 as the basis for dispute settlement.In the Copyright Rights Law,Article 10 and 48 are mostly taken as the basis for protecting the merchandising rights of work elements.The merchandising rights divides the United States into right of publicity and right of character based on whether the object of natural person or virtual role.The protection of right of character in the judicial practice adopts the mode of cross-protection of trademark law,copyright law and anti-unfair competition law.The right of publicity originated in privacy,formally introduced by a judge in the Haelan case in 1953.Most US states now protect the right of publicity as property rights.The development of commercialization rights in Japan is inherited from the United States,but it is different from the United States in the subsequent development.At present,the "customer attraction theory" derived from Japan in the practice of protecting merchandising rights of work elements is of important reference significance for the establishment of the protection path of merchandising rights of work elements in China.At present,the debate on the merchandising rights of work elements of in China mainly focuses on two aspects.First,whether the merchandising rights is worth protection.Second,in what path,the merchandising rights of work elements should be protected.For the first issue,the merchandising rights should be protected as an intangible property.The merchandising rights can be identified as the operating credit right to protect the object as goodwill.In view of the second question,whether the merchandising rights of work elements can be divided into the merchandising rights of work elements of natural person and the merchandising rights of work elements of non-natural persons.The merchandising rights of work elements of natural person involves the debate of how the property rights with the elements should have personality rights defined.The he merchandising rights of work elements of non-natural person works is a typical property right.For the debate of the merchandising rights of the works of natural persons,the theory of binary right provides the most appropriate solution at present,that is,what kind of interest the right object carries is what kind of right.Based on the theory of dual rights,the right to the merchandising rights of work elements of natural persons should be attributed to property rights based on the financial rights carried by them.The legitimacy of the right of merchandising rights of work elements can be proved from two aspects:the necessity basis and the legitimacy basis.In terms of necessity,first,the merchandising rights of work elements has a clear legal benefit.Second,under the action of various factors,more demands to protect merchandising rights of work elements.Third,the judiciary should respond to the rights and interests demands in the market economy.In terms of legitimacy,Locke’s property right theory of labor and Kant,Hegel’s property right of personality theory can provide legitimate basis for merchandising rights of work elements,but this legitimacy basis is for the general sense of commercial right,specific to all kinds of specific commercialization rights and interests may appear can not provide sufficient judgment.China’s current legal framework can be connected with a three-level path to protect the merchandising rights of work elements.The first level is legal intellectual property protection,which relies on the registered trademark system,the copyright system and the appearance design patent system for protection.The second level is the supplementary protection of intellectual property rights,which is to protect the right of merchandising rights of work elements within the trademark law domain.The second level protection path can effectively supplement the first level protection path,but there are also the characteristics of protection with lag.The third level is the protection based on the anti-unfair competition law.The main basis is Article 6 and Article 2 of the Anti-unfair Competition Law.Compared with the three levels,the protection intensity is reduced step by step,and the applicability increases step by step.Among them,the third level of the protection path has the widest coverage,so it should be combined with the case when applicable.Damage to goodwill holders caused by normal market competition should not be identified as damage to rights and interests.When applying Article 2 of the Anti-Unfair Competition Law to protect the right of commercialization of work elements,it should be used carefully and prudently on the premise of meeting the corresponding requirements.