The plight of merchandising rights in China

By Kevin Nie, China IP,[Comprehensive Reports]

As a new kind of right emerging with the development of modern economy, the issue of merchandising rights is increasingly common in legal cases and a hot issue. In China, merchandising rights are more of a topic in the academia. While in developed countries like US and Japan, merchandising rights can bring over billions of profits for the right holders. The judicial protection over merchandising rights is deepened in overseas countries, while the term “merchandising rights” is not even a specific legal term in China. Theoretical study on merchandising rights sprang up only a decade ago in China, and there is no consensus over the issue so far.

However, as China’s economy continuously develops and prospers, people begin to realize the tremendous value of well-known peoples’ names and portraits, as well as the value of the fictional characters in famous works. Moreover, with the development of the animation industry, various disputes and infringements are accordingly arising. How to protect merchandising rights has become an inevitable practical problem.

Because of the lack of a legal basis, the courts often use existing laws and regulations to solve infringement cases involving merchandising rights. More often than not it appears as if this approach offers an implausible solution.

Right now it is difficult to clarify how merchandising rights will develop in the short term, but it is worth acknowledging that some courts in China hold a positive attitude towards merchandising rights cases, they try to make breakthroughs based on the current laws and regulations. The judgments of related cases have resulted in a strengthening of merchandising rights and legal protection.


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