Abstract
The Supreme People’s Court (SPC) case of ‘乔丹’, brought by Michael Jordan against Qiaodan Sports, is a landmark case over the protection of the right to the personal name in the People’s Republic of China (PRC). In the retrial proceeding, the SPC gave eight exhaustive explanations to the disputed questions and eventually reversed the lower court’s decision. After studying the judgment, this article finds that a famous foreign name can be protected by Chinese Trademark law only when it satisfies three conditions: First, the specified name enjoys a certain popularity in China and is well-known to the concerned public; second, the concerned public uses the specified name to refer to the original person of that name; and third, there has already been a stable match between the specific name and the original person of that name. Although China mainly adopts the “right to name” for the legal protection of celebrity names, the right to name is a kind of personal right, difficult to protect economic benefits derived from celebrities’ names fully. Comparing Germany’s extended protection model of personality rights and the United States model of “right of publicity,” this article suggested that China tries to introduce the United States model to protect the celebrity name’s right.
Highlights
Nowadays, a personal name, especially a famous name, contains a tremendous commercial value and can become the trademark preemption object by individuals or companies
This article finds that a famous foreign name can be protected by Chinese Trademark law only when it satisfies three conditions: First, the specified name enjoys a certain popularity in China and is well-known to the concerned public; second, the concerned public uses the specified name to refer to the original person of that name; and third, there has already been a stable match between the specific name and the original person of that name
China mainly adopts the “right to name” for the legal protection of celebrity names, the right to name is a kind of personal right, difficult to protect economic benefits derived from celebrities’ names fully
Summary
A personal name, especially a famous name, contains a tremendous commercial value and can become the trademark preemption object by individuals or companies. In China, with its first-to-file trademark registration system, famous foreign names or brands have learned the hard way to be proactive in protecting their names or brands in the Chinese language. Some have been slow in protecting the Chinese language versions of those brand names and have seen their brand recognition pulled out from under them. Once the registered trademark conflicts with the prior user’s right to personal name, what will happen? Most trademark laws in the world offer protection of the right to a personal name. 711-4 (f) and (g) the French Intellectual Property Code, a trademark may not harm a third person’s “personal right” (droit de la personnalité), such as the name, pseud-. A trademark will be forbidden to register if it harms another person’s personal rights
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