Introduction:

Whether it is necessary to create a right of commercialization of personality identifiers requires an examination of the current state of legal provisions and judicial practice regarding the commercialization protection of personality identifiers in China, analysis of potential problems, investigation of the causes of these problems, and consideration of whether establishing a right of commercialization of personality identifiers can resolve systemic and applicational contradictions and fully realize the commercial value of personality identifiers.

I. Existing Legal Provisions Are Fragmented, Providing Incomplete Protection for Commercialization of Personality Identifiers

The Civil Code, for the first time, organized and revised the provisions on personality identifiers in the General Principles of Civil Law, General Provisions of Civil Law, and Tort Liability Law, dedicating a chapter in the Personality Rights section to the right to肖像 and the right to name, representing some progress in protecting the commercial value of personality identifiers. However, the许可 use system for personality identifiers remains incomplete, lacking a standardized pre-emptive rights exercise model. It only regulates tort liability after infringement, primarily adopting a post-event relief model for the commercial value of personality identifiers. Furthermore, the compensation standards for infringement damages are unclear, only stipulating that “consideration shall be given to factors such as the occupation of the actor and the victim, the scope of influence, the degree of fault, and the purpose, method, and consequences of the act,” introducing uncertainty into the protection of the commercial value of personality identifiers.

Beyond the Civil Code, provisions concerning the protection of the commercial value of personality identifiers can also be found in other laws. For example, Article 6 of the Anti-Unfair Competition Law stipulates: “Business operators shall not implement the following混淆 acts likely to cause others to误认为 their goods are those of others or have a specific connection with others: (2) using without authorization another person’s enterprise name (including abbreviations, trade names, etc.), social organization name (including abbreviations, etc.), or name (including pseudonyms, stage names, translated names, etc.) that has certain influence…” However, this law regulates unfair competition among market subjects in a competitive relationship. If the person infringing the commercial interests of personality identifiers is not a business operator, this law cannot apply. Additionally, Article 6 of the Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of the Anti-Unfair Competition Law reaffirms that “name” as a personality identifier is protected under the Anti-Unfair Competition Law, but no provisions mention other personality identifiers.

Furthermore, Articles 8, 9, and Articles 57(1) and 57(2) of the Trademark Law provide for肖像, names, voices, etc., among personality identifiers. When personality identifiers meet the conditions of distinctive characteristics, they can be protected under the Trademark Law during trademark application and registration. However, the above provisions are limited to using personality identifiers to register trademarks. If actors use others’ personality identifiers outside the scope of trademark registration, the trademark exclusive right provisions have no application.

Additionally, Articles 33 and 68(4) of the Advertising Law stipulate that advertisers, advertising operators, and advertising publishers must obtain consent when using another person’s name or likeness in advertising. The legal consequences are merely summarized as: “If any of the following infringements occur, civil liability shall be borne according to law…” These provisions have low operability. When property interests in personality identifiers are infringed, merely relying on “bear civil liability” makes it difficult to ascertain the scope and method of liability and fails to provide specific legal consequences for courts applying this provision.

Overall, existing legal provisions fail to establish complete pre-event rights exercise models and post-event relief models for personality property rights. Furthermore, due to fragmented provisions across various laws and regulations, past judicial adjudication has模糊 the connotation of personality identifiers and the identification of rights holders of personality identifiers,无法 fully guarantee the freedom and security of natural persons in exercising personality property rights, and leaves rights without clear legal basis for calculating damages when infringed.

II. Unclear Scope of Protection in Judicial Practice — Taking the Determination of Portrait Rights and Name Rights in the “Jordan Case” as an Example

The above analysis of the current state of protection of the commercial value of personality identifiers in judicial practice through legal document检索 leads to the conclusion that clear and comprehensive legal provisions are lacking. Below, using the typical “Jordan Case” as an example, the necessity of constructing a right of commercialization of personality identifiers to address the现状 of unclear judicial adjudication standards is discussed.

In October 2012, Michael Jordan applied to the Trademark Review and Adjudication Board (TRAB) to declare several trademarks registered by Jordan Sports Company invalid, citing infringement of his prior name rights. In April 2014, the TRAB ruled to maintain the validity of the disputed trademark registrations. Michael Jordan then filed 78 series of administrative lawsuits with the Beijing First Intermediate People’s Court. In October 2014, the Beijing First Intermediate Court upheld the TRAB’s ruling. Michael Jordan subsequently appealed to the Beijing High People’s Court. In July 2015, the Beijing High Court dismissed the appeal.

In 2015, the Supreme People’s Court successively rejected most of Michael Jordan’s retrial applications in the series of cases, as these trademarks had exceeded the statutory 5-year trademark protection period[1], and lawfully granted retrials for the remaining cases in batches, issuing retrial judgments in 2016 and 2020 respectively. In 2016, the Supreme Court found that the registered trademark containing the Chinese characters “乔丹” infringed Michael Jordan’s prior name rights, ordered the reversal of the original judgment and instructed the Intellectual Property Office to重新 make a ruling on the involved trademark, while finding that “QIAODAN” and “qiaodan” and graphic combination trademarks were not subject matter of name right protection, rejecting Michael Jordan’s retrial application.

Regarding names, the disputed “names” in this series of cases included the Chinese characters “乔丹,” and the pinyin “QIAODAN” and “qiaodan.” Over the years of case proceedings, China’s judicial practice concerning name right protection has made considerable progress. Specifically, originally under the General Principles of Civil Law, “name” generally referred to legal names used in formal settings. Citizens “have the right to decide their own name,” “have the right to change their name,” and “have the right to use or not use their name to participate in social life,” so name right infringement mainly involved interference, unauthorized use, and impersonation. Subsequently, the conceptual scope of “name” has continuously evolved, and the restrictive interpretation of “name” under the General Principles of Civil Law can no longer adapt to the continuous development of social life. Name rights have evolved from a purely personal right to develop a二分 property of personal and property attributes. New types of “names” such as pseudonyms, name homophones, and stage names have gradually gained recognition. The Trademark Law, after amendment, also explicitly prohibits using others’ names for trademark registration without authorization.

Article 1017 of the Civil Code, effective January 1, 2021, stipulates: “Pseudonyms, stage names, online monikers, translated names, trade names, abbreviations of names and titles, etc., that have certain social recognition and whose use by others is likely to cause public confusion, shall be protected by reference to the relevant provisions on the right to name and the right to entity name.” This article expands the scope of protection of name rights to some extent, but requires “certain social recognition” as a prerequisite, whose meaning has no further judicial interpretation. How to determine the recognition of pseudonyms, stage names, online monikers, abbreviations, etc., in practice, and what level must be reached to meet this article’s prerequisite, still requires judicial discretion, which may lead to different standards of judicial protection for the property interests of name rights across cases.

The “Jordan Case” series, in addition to name rights, also involves the protection of portrait rights. In the administrative judgment (2018) Zui Gao Fa Xing Zai No. 32, the Supreme People’s Court found that trademark No. 6020578 “Jordan and Device” infringed Michael Jordan’s prior name rights. Whether the “black human silhouette” component of the involved trademark could be considered the subject matter of Michael Jordan’s portrait rights was one of the main dispute issues. During trial, Michael Jordan’s representatives argued that the silhouette trademark should be considered in conjunction with Jordan Sports’ company name and other trademarks containing “Jordan” to determine whether it would cause public to误认为 a specific connection between the brand and basketball star Jordan. Simultaneously, Michael Jordan’s side demonstrated his classic jump shot photo in court and showed that when their image in the photo and the “black human silhouette” in the trademark were enlarged to the same size, they completely overlapped, proving that the black silhouette的外观 could possibly cause the public to directly联想到 Michael Jordan. Ultimately, the Supreme Court did not accept Michael Jordan’s claim that the “black human shape silhouette” in the trademark infringed his portrait rights, reasoning that the “black human silhouette” lacked identifiability.

When the Supreme Court issued final judgments in the Jordan series, the Civil Code had not yet taken effect. Therefore, it could only rely on the then-current portrait rights provisions, finding that Michael Jordan’s body movement特征 did not constitute a “portrait” in the civil law sense. Under judicial precedents at that time, “portrait” determination primarily considered whether the natural person’s facial features were displayed, not the body特征. Notably, the Civil Code for the first time expanded this adjudicative approach, defining portrait as “the identifiable external image of a specific natural person reflected on a certain载体 through影像, sculpture, painting, etc.” Under this definition, portrait right protection is not limited to facial features; other physical特征 may also obtain portrait right protection when conditions are met—a significant advancement in portrait right protection. A typical example is the case of Yi Mou v. Zhan Biotechnology Co., Ltd. concerning portrait rights and name rights, published in the 2021 “People’s Court Case Selection” journal, where the court found that “identifiable portrait silhouettes fall within the scope of portrait right protection.” Regarding such changes in expanded portrait rights, due to the relatively short implementation period of the Civil Code, more adjudicative cases could not be retrieved and still await further verification and clarification through后续 judicial practice.

Although the “Jordan Case” is now history, the court’s reasoning approach remains highly significant for studying the right of commercialization of personality identifiers. Specifically, regarding portraits, past judgments typically defined them as “facial images of natural persons reproduced in some material form.” Only “clearly identifiable facial features” could further establish infringement—meaning portraits in advertisements or related promotional activities must have clear personal image特征 capable of准确 identification and distinction. However, in some cases, even if the rights holder could identify the portrait as themselves, the claim would not be supported due to the lack of publicly identifiable and distinguishable image特征. Regarding names, current judicial practice lacks unified认定 standards for applying Article 1017 of the Civil Code concerning “certain social recognition,” preventing this provision from forming relatively确定 legal expectations for citizens and不利于 protecting citizens’ freedom and security in choosing to exercise name property interests.[2]

The “Jordan Case” illustrates the legal protection of the commercial value of “portraits” and “names” among personality identifiers. Beyond names and portraits, protection of voice is reflected in Article 1023(2) of the Personality Rights section of the Civil Code: “Protection of a natural person’s voice shall be governed by reference to the relevant provisions on portrait right protection.” This provision does not specify clear standards for voice protection. Given the大量 market phenomena where the voices of individuals with certain recognition are extracted, decomposed, and grafted to create virtual images identical to real voices for economic gain, whether this provision can uniformly regulate these different forms of “voice” remains to be seen. Additionally, with technological and social development, other personality elements may acquire significant property value due to obtaining significant identifiability, but the lag in legal revision may result in such personality elements not receiving timely judicial protection due to the lack of clear legal provisions.

In summary, whether for names, portraits, voices, or other new types of personality identifier protection in judicial practice, legal norms must further clarify standards, and specific cases must further summarize adjudicative experience, unify adjudicative approaches, and continuously improve the level of judicial protection for personality identifiers.

III. Creating a Right of Commercialization of Personality Identifiers Has Significant Value in Legislation and Judicature

As discussed above, the scope of determination in judicial practice for various personality identifiers is unclear. The fundamental reason is that China’s civil law has not yet established a systematic concept of the right of commercialization of personality identifiers, and courts lack specific legal provisions directly可援引 for adjudicating personality rights property interests. Most judges still base their decisions on the basic personal attributes of personality rights, providing relatively restricted protection for the property interests of personality identifiers. Thus, past judicial adjudication has not fully protected citizens’ commercial rights in their personality identifiers and has not adapted to the socio-economic development needs of protecting the property value of personality identifiers.

Creating a right of commercialization of personality identifiers would establish a unified protection model for the property value of personality rights in legislation and clarify the scope of protected personality identifiers in judicature. Based on the二分 property of “personal and property” personality rights in the Civil Code, its core value lies in appropriately separating the property attributes from the personal attributes of personality rights. From the origin of personality rights, the personality rights system for a long time focused on protecting natural persons’ spiritual interests from third-party infringement and requiring those infringing personality rights to bear compensation for non-property damage[3]. Until people recognized that personality rights holders not only enjoy spiritual interests in some personality elements but can also use them for commercial activities to obtain economic benefits.[4]

Undoubtedly, the commercialization right overlaps with related specific personality rights. The rights to name, entity name, portrait, voice, and image are all independent specific personality rights, and the commercialization right precisely protects the property interests in the commercial development of these rights.[5]

If viewed from a property rights perspective, the economic value of natural persons’ names and portraits can be separated from the subject, and the exercise of these property interests need not be limited to the natural person themselves.[6]

Establishing a commercialization right for personality identifiers can reasonably divide and define the content and scope of the property value of personality rights, separating it from non-transferable personal attributes, making it not necessarily attributable to the natural person themselves. Specific content of the commercialization right system includes formulating specific rules for licensing and transfer of personality identifier commercialization rights, improving the pre-event rights exercise model to adapt to individual and market needs, enabling rights holders to more freely create economic benefits and value. Simultaneously, based on the independent property attributes of the personality identifier commercialization right, developing independent calculation bases for property value loss, so that compensation for infringement of personality identifier property interests no longer relies on reference to personal injury compensation standards, thereby improving the post-event relief model for the commercialization right. For example, for illegal use of others’ portraits for commercial advertising, the rights holder can seek relief through property compensation—a major difference between commercialized personality rights and general personality rights.[7]

In conclusion, creating a right of commercialization of personality identifiers can better integrate the unified protection model of “pre-event” rights exercise and “post-event” relief for the property value of personality rights, representing significant progressive significance for both personality rights legislation and judicature, and is an inevitable requirement for fully realizing the commercial value of personality identifiers.

Notes:

[1] See Articles 9, 32, and 45 of the Trademark Law.

[2] Xie Hui. On the Purpose of Legal Expectations and Their Normative Presuppositions [J]. Eastern Law, 2022, (05): 126-138.

[3] Giorgio Resta, The New Frontiers of Personality Rights and the Problem of Commodification: European and Comparative Perspectives, TUL. EUR. & CIV. L.F., Vol.26, p.42(2011).

[4] Huw Beverley-Smith, The Commercial Appropriation of Personality, Cambridge University Press, 2004, p.8.

[5] Yang Lixin, Lin Xuxia. On the Right of Commercialization of Personality Identifiers and Its Civil Law Protection [J]. Journal of Fujian Normal University (Philosophy and Social Sciences Edition), 2006, (01): 74-80.

[6] Zhang Peng. Historical Evolution and Theoretical Analysis of the Right of Commercialization in Japan [J]. Intellectual Property, 2016, (05): 104-115.

[7] Wang Liming. On the Commercialization of Personality Rights [J]. Legal Science (Journal of Northwest University of Political Science and Law), 2013, (04): 54-61.