【作者】 曹军婧；

【导师】 刘亚军；

【作者基本信息】 吉林大学 ， 国际法学， 2008， 硕士

【摘要】 随着商品经济的发展,商品化现象在我国初见端倪,并引起了侵权纠纷,如著名的鲁迅肖像案、“三毛”漫画形象纠纷案、“奥特曼”纠纷案、五朵金花案等就具有典型的代表意义。由于缺乏法律的明确规定和理论的支撑,司法实践对于已在我国出现的虚拟角色商品化权纠纷案件的审判或有失公平,或有失统一,对商品化权问题的研究逐渐受到我国学术界的关注。由于这是一项新型权利,国外研究尚未定型,国内研究也刚刚起步,对很多问题的探讨还不成熟,在很多方面并未达成共识。本文通过对美国虚拟角色商品化权法律保护的现实考量得到启示,认为我国应借鉴美国实践中所采取的综合保护模式,参考美国判例法中所形成的保护标准,尝试推出与研究典型案例,等待时机成熟后以司法解释的方式确立保护标准,从而完善对虚拟角色商品化权的法律保护。更多还原

【Abstract】 People have known a little about Merchandising in China. As we are lack of the explicit provision in law and the suppo rting of theories, the judicial fulfillment has lost fair or unity in the judgment of cases relates to merchandising right in fictional characters in our country. We draw a conclusion by the analysis of the legal protection in the USA. Our country should draw lessons from the synthesis protect mode adopted by the USA in practice, make reference to protection standard which is formed in American case law, and try to show and research typical model case. After our maturity, we can establish the protection standards of the merchandising right in fictional characters by the way of judicatory explain.This text is divided into three parts:ChapterⅠintroduces some basic theories which relates to merchandising right in fictional characters. It starts with what merchandising is. In this article, I analyze the meaning of merchandising from three aspects: the birth of merchandising, the creation and the explanation of the word "merchandising ", and the object of merchandising. In this text, I want to explain that the merchandising is the phenomenon that makes the factor of the business value (such as real images, fictional characters etc.) be used in business. Secondly, this text discusses the creation of merchandising rights in the US and the present situation in China. It is necessary to emphasize that merchandising rights originated from the US and the UK. It is mainly a kind of right established and developed from case law. However, in our country, it is still an in-response-law, but not legal rights. For the research of this new right, our country is still placed on a beginning stage. It’s not mature on the study of a lot of problems. And it hasn’t reached consensus in many ways, especially the differences of appellation and characters. In the last part of this article, the most important part of merchandising right system has been put forward: the merchandising right in fictional characters. This part introduces the object of the merchandising right in fictional characters is the classification types of fictional characters.ChapterⅡintroduces the legal protection of the merchandising right in fictional characters in our country and the US. This is the core contents of this article. First, this text analyzes the present protection of the merchandising right in fictional characters. In our present law system there is no clear stipulation about the merchandising right in fictional characters. To the existent dispute case in China, like "Ao Te Man" case, "San Mao" case, "Garfield Cat" case, the judicial organ is looking for the ways of merchandising right protection in current entity. It mainly adopts the copyright law, the trademark law, the anti-falsely competition law to safeguard the benefits of people. Secondly, this text uses five cases to introduce the protection mode and protection standard of the merchandising right in fictional characters in the United States. In the USA, the protection of the merchandising right in fictional characters can only be seen in judicial precedent. In judgments and comments, the judge refers to the ways of protecting fictional characters ---- search for reasonable protection in existent law system, and adopts the comprehensive protection mode of copyright law, trademark law and anti- falsely competition law. At the same time, it expounds the basic principle of protecting fictional characters, and the special protection standard of merchandising right in fictional characters comes into being. The American judicial fulfillment brings the role into the protection of American copyright law by the way of explaining a judicial precedent by a judge, and different standards of classifying roles in literature works, cartoon roles and showbiz roles come into being. Besides the unique characteristic protected by the copyright law, the fictional characters also have expression function and marking function which can mark the resources of merchandise and service. In view of above, American judicatory practice depends on whether fictional characters have "the second meaning" and whether using fictional characters is confused by public. It has given protection to fictional characters with trademark law and anti- falsely protection law.The chapterⅢis the discussion of the implication of protection for merchandising right in fictional characters in the USA. Firstly, the author reviews the typical case called“San Mao”from the aspect that the merchandising right in fictional characters is infringed, and gives another viewpoint by using the protective standard of cartoon characters for reference, arising from the precedents in the USA. Secondly, the article points out we should adopt synthesis model to protect merchandising right in fictional characters excluding independent model. Seen from legal practice in American, the existent intellectual property law and others related can give sufficient protection to merchandising right in fictional characters, so there is unnecessary to establish special law. The author approves of this viewpoint and suggests that we should use American successful experience for reference and consider our country’s legal system to adopt compositive model, including copyright law, trademark law and unfair competition law, to protect merchandising right. Finally, the author suggests that we should take up an objective attitude towards treating the protective standard of merchandising right in fictional characters formed from American case law. On the one hand, unlike American, whose legal system is case law, the legal system in China is statutory law; the Chinese judges can not make law but apply law. So we could attempt to publish and research typical cases, and then we could establish our own protective standard by the form of judicial interpretation on the proper time. On the other hand, we need to try best to find relative law or statute or principle of law to protect merchandising right under the situation which without direct legislation in our country. Furthermore, we also need to improve or perfect intellectual property law, especially copyright law and unfair competition law, in order to offer best legal protection.The thesis doesn’t concern other issues on merchandising right. I believe that there are more and more disputes arising from merchandising right with the development of the China’s Market economy and the people’s consciousness of right, which giving more and more problems to legislation and justice, and promoting scholar research it deeper and deeper. We should find a proper way to protect merchandising right in China by using overseas successful experience for reference and considering the specific situation in China together.更多还原