论我国商业形象权制度的构建
发布时间：2018-08-07 16:19
【摘要】：随着商品经济的迅猛发展,商家利用知名人物的形象进行商业化宣传的现象不断出现,而与知名人物形象有关的纠纷案件也不断产生。由于我国没有建立商业形象权保护制度,发生类似案件的时候只能援引人格权法、知识产权法或者不正当竞争法的相关规定来进行判决。但这样的保护模式具有很大的缺陷。美国的商业形象权保护制度从1953年正式确立到今天,已经有60多年了,并且在司法实践中发挥了很大的作用,使得权利人的合法权益得以有效保护。因此,笔者主张我国应该借鉴国外相关制度,并结合我国的实际情况,构建我国的商业形象权保护制度。除了引言和结语,本文共分为四章。第一章笔者分别介绍了美国、日本、世界知识产权组织对商业形象权的界定,同时介绍了我国理论界对商业形象权的定义,并分别对商业形象权与肖像权、商誉权、人格权进行了辨析。笔者认为商业形象权指自然人对自己的可识别性的形象要素所具有的商业利用价值进行商业化利用的权利,仅包括自然人的真实人物形象,不包括虚构角色形象,也不包括法人或其他组织,此为本文与其他学者观点的不同之处,亦为本文的创新点之一。第二章中,笔者介绍了我国理论界对商业形象权性质的认识,主要有四种学说,分别为知识产权说、商事人格权说、新型人格权说、无形财产权说,并对各种学说的观点进行了点评。笔者认为我国商业形象权性质上应当属于无形财产权。第三章中,笔者主要对美国、日本的商业形象权保护制度进行比较法分析,并阐述我国商业形象权的保护现状及缺陷,为下文我国构建商业形象权保护制度做好铺垫。在介绍美国的商业形象权保护制度时,以美国加利福尼亚州的商业形象权保护制度为代表进行分析,此为本文的创新点之二。第四章中,笔者认为在我国理论界对于商业形象权制度处于初始研究阶段的背景下,我国商业形象权保护制度的构建不能急于求成,在初始阶段应该遵循从严立法的指导思想,并从商业形象权的法律关系、限制制度、侵权的构成要件和民事责任承担方式方面对我国商业形象权制度的构建提出具体的建议,期望能对我国商业形象权保护制度的构建做点贡献。
[Abstract]:With the rapid development of commodity economy, the phenomenon of businessmen using the image of well-known characters for commercialized propaganda is constantly appearing, and the disputes related to the image of well-known characters are also emerging. Because our country has not established the protection system of commercial image right, we can only invoke the relevant provisions of personality right law, intellectual property law or unfair competition law to judge when similar cases occur. But this kind of protection mode has the very big flaw. It has been more than 60 years since the establishment of the commercial image right protection system in the United States in 1953, and it has played a great role in judicial practice, which makes the legitimate rights and interests of the right holders to be effectively protected. Therefore, the author argues that our country should draw lessons from foreign relevant systems, and combine the actual situation of our country, construct the protection system of commercial image right of our country. In addition to the introduction and conclusion, this article is divided into four chapters. The first chapter introduces the definition of commercial image right in the United States, Japan and the World intellectual property Organization. At the same time, it introduces the definition of commercial image right in our country, and the right to commercial image and portrait, goodwill right respectively. Personality right is analyzed. The author believes that the right to commercial image refers to the right of a natural person to commercialize the commercial utilization value of his identifiable image elements, including only the real personage of a natural person, not the fictional character image. It does not include legal persons or other organizations. This is the difference between this paper and other scholars, and it is also one of the innovations of this paper. In the second chapter, the author introduces the understanding of the nature of commercial image right in the theoretical circle of our country. There are four kinds of theories: intellectual property right theory, commercial personality right theory, new personality right theory, intangible property right theory. At the same time, the views of various theories are reviewed. The author thinks that the right of commercial image in our country should belong to intangible property right in nature. In the third chapter, the author mainly analyzes the protection system of commercial image right in America and Japan, and expounds the present situation and defects of the protection of commercial image right in our country, which lays the groundwork for the construction of commercial image right protection system in our country below. When introducing the business image right protection system of the United States, this paper analyzes the business image right protection system of California, which is the innovation of this paper. In the fourth chapter, the author thinks that under the background of the initial research on the commercial image right system in the theoretical circle of our country, the construction of the commercial image right protection system in our country cannot be carried out in haste, and the guiding ideology of strict legislation should be followed in the initial stage. And from the legal relationship of the commercial image right, the restriction system, the constitution elements of the tort and the way of the civil liability, the author puts forward some concrete suggestions on the construction of the commercial image right system in our country. The author expects to make some contributions to the construction of the protection system of commercial image right in our country.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.29
本文编号：2170611
[Abstract]:With the rapid development of commodity economy, the phenomenon of businessmen using the image of well-known characters for commercialized propaganda is constantly appearing, and the disputes related to the image of well-known characters are also emerging. Because our country has not established the protection system of commercial image right, we can only invoke the relevant provisions of personality right law, intellectual property law or unfair competition law to judge when similar cases occur. But this kind of protection mode has the very big flaw. It has been more than 60 years since the establishment of the commercial image right protection system in the United States in 1953, and it has played a great role in judicial practice, which makes the legitimate rights and interests of the right holders to be effectively protected. Therefore, the author argues that our country should draw lessons from foreign relevant systems, and combine the actual situation of our country, construct the protection system of commercial image right of our country. In addition to the introduction and conclusion, this article is divided into four chapters. The first chapter introduces the definition of commercial image right in the United States, Japan and the World intellectual property Organization. At the same time, it introduces the definition of commercial image right in our country, and the right to commercial image and portrait, goodwill right respectively. Personality right is analyzed. The author believes that the right to commercial image refers to the right of a natural person to commercialize the commercial utilization value of his identifiable image elements, including only the real personage of a natural person, not the fictional character image. It does not include legal persons or other organizations. This is the difference between this paper and other scholars, and it is also one of the innovations of this paper. In the second chapter, the author introduces the understanding of the nature of commercial image right in the theoretical circle of our country. There are four kinds of theories: intellectual property right theory, commercial personality right theory, new personality right theory, intangible property right theory. At the same time, the views of various theories are reviewed. The author thinks that the right of commercial image in our country should belong to intangible property right in nature. In the third chapter, the author mainly analyzes the protection system of commercial image right in America and Japan, and expounds the present situation and defects of the protection of commercial image right in our country, which lays the groundwork for the construction of commercial image right protection system in our country below. When introducing the business image right protection system of the United States, this paper analyzes the business image right protection system of California, which is the innovation of this paper. In the fourth chapter, the author thinks that under the background of the initial research on the commercial image right system in the theoretical circle of our country, the construction of the commercial image right protection system in our country cannot be carried out in haste, and the guiding ideology of strict legislation should be followed in the initial stage. And from the legal relationship of the commercial image right, the restriction system, the constitution elements of the tort and the way of the civil liability, the author puts forward some concrete suggestions on the construction of the commercial image right system in our country. The author expects to make some contributions to the construction of the protection system of commercial image right in our country.
【学位授予单位】：复旦大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D922.29
【参考文献】
相关期刊论文 前1条
1 马蒂;;形象权探析[J];西南科技大学学报(哲学社会科学版);2008年02期
，本文编号：2170611
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