Merch-products and merchandise-activity as objects of civil rights in the impression economy

Abstract

Today, such objects of civil legal relations, such as merch-products (stylized clothing, attributes) and merchandise-activity, are becoming increasingly important, that is, visiting thematic parks, quests and other activities, allowing you to plunge into the world of your favorite films and books. Consumers are not enough to receive standardized goods, they need impressions that meet their unique aesthetic and cultural preferences. The article discusses the legal aspects of the phenomenon of fan activity and related issues of protection of intellectual rights. According to the resuits of the article, the urgency of the doctrine of fair use is noted, according to which the free dissemination of the results of intellectual activity during merchandis activity is allowed, if it contributes to the development of arts and cultural progress. Currently, however, neither the Civil Code of the Russian Federation nor any other applicable regulation mentions concepts referring to merch or merchandise. Disputes relating to fan activity are governed by the general principles of civil law as well as by the provisions of Part 4 of the Russian Civil Code dealing with copyright or trademark protection. For example, according to Article 1482 of the Civil Code of the Russian Federation, verbal, pictorial, volumetric and other designations may be registered as trademarks. Accordingly, under Russian law, local producers of confectionery products may also be sued for selling cakes with an image of Cinderella or Bambi by representatives of the rights holder of the relevant trademark. However, the application of the general provisions of the Civil Code to obligations arising from such unique objects of civil legal relations as children's parties, quests, participation in theme camps, role-playing games or other merchandising activities has certain peculiarities. The protection of exclusive rights in these markets must take into account the goals of stimulating innovation and cultural and technological progress. In our country, the three-step test is partly enshrined in Part 5 of Article 1229 of the Civil Code of the Russian Federation, according to which the use of the results of intellectual activity is allowed without the consent of the right holders if it does not cause unjustified damage to the ordinary use of intellectual property or otherwise infringe upon the legitimate interests of the right holders. In addition, Article 1274 of the Civil Code permits free use of the work for informational, scientific, educational or cultural purposes. Consequently, merchandising activity cannot be recognised as infringing the interests of right holders because, based on the systematic interpretation of Articles 1229 and 1274 of the Civil Code of the Russian Federation, a fan reworking does not displace the original work from circulation. The author declares no conflicts of interests.