INTRODUCTIONPersonal names are intangible assets which are used more and more often by enterprises, as they increasingly rely on
market appeal of famous people to sell products. Many personal names have a high level of recognition and awareness at all levels of society and as a result can have a high economic value. In practice, once status of fame is reached, name may be used in many commercial activities with a fair prospect of profitable business.
When Michael Jordan’s name was once used in Nike products, within a certain period of time, fans and consumers alike stopped saying ‘I am wearing a pair of Nikes’, and instead began saying ‘I have a pair of Jordans’, eventually turning this model of Nike basketball shoes into a powerful brand. Jordan’s brand has since been extended to a wider range of products and even services (restaurants). Many other famous people or celebrities allow their names to be used in connection with perfumes and other products. Such products connote a feeling, an experience of success, and image of person lending their name.
In People’s Republic of China, famous people also register their names as trademarks; however, in China, successful registration of a personal name depends on its cultural value as well as its market appeal. In some cases, people associate a given name with values and moral standards, which could eventually frustrate effort to register with Chinese Trademark Office, as Lu Xun case illustrates.
The Lu Xun Case Lu Xun is a famous writer in China, who was born in Shaoxing, East China's Zhejiang province on Sept. 25, 1881. Shaoxing is a Chinese geographic location known for its famous yellow wine (绍兴黄酒). Some of his literary works are required reading for all Chinese students who attend middle school throughout China.
Needless to say, Lu Xun (as far as I know) never attempted to apply for registration of his personal name as a trademark before he died back in 1936. As a historical note, first Chinese Trademark Law was enacted under Qing Dynasty in 1904.
In 2001, Lu Xun’s grandson founded a wine company, which he named after his grandfather. He also filed an application to register Lu Xun as a liquor brand on behalf of family. The application was rejected by Trademark Office, which also prohibited any commercial activity concerning Lu Xun. The grounds for refusing its registration was contention that it is ‘improper’ to use name of one of modern China’s greatest writers for commercial activities. The Trademark Office alleged that as a public figure, Lu Xun’s fame is not only owned by his family, but by whole of society.
The applicants have appealed to Trademark Review and Adjudication Board. They also successfully registered a trademark using simply characters for Lu Xun in Japan in October 2001. Also in China, an art school successfully registered Lu Xun as a word mark, but trademark comprised more Chinese characters than merely those of Lu Xun (鲁迅艺术学院)(in English, Lu Xun Art School). We set out options for Lu Xun’s descendants and those wishing to register personal names, in general.
1. Options under Amended Copyright Law of PRC
Personality Rights As an author of literary works, Lu Xun was entitled to both personality and property rights. While latter have a term of protection of 50 years after author’s death, former are unlimited in time. The economic rights expired a long time ago.
According to Regulations for Implementation of Copyright Law of PRC, inheritance of economic rights contained in copyright shall be executed in accordance with Law of Inheritance. Chinese morality and social customs suggest that Lu Xun’s descendants have obligation to maintain reputation of their ancestor, an obligation which –with economic rights having expired- can only be carried out through enforcement of his personality rights before courts. But personality rights comprise right of authorship, alteration of one’s work and right of integrity (protection against distortion and mutilation), which are not pertinent to present case.
Also, according to Article 9 of General Principles of Civil Laws, “A citizen shall have capacity for civil rights from birth to death and shall enjoy civil rights and assume civil obligations in accordance with law”. It is clear then, that only a living person can enjoy right to determine, use, or change his/her personal name; his descendants may only inherit those property rights deriving from name for limited period of time stated in PRC Copyright Law.
Authorship Another key issue, moreover, is that copyright protection extends only to “original works of authorship.” Article 3 states clearly kinds of works that can be protected by copyright. To be protected by copyright, a work must contain at least a certain minimum amount of authorship in form of original literary, musical, pictorial, or graphic expression. Names, titles, and other short phrases do not meet these requirements and, therefore, are not entitled to copyright protection, even if name, title, or short phrase is novel, distinctive and/or lends itself to a play on words.
Because trademark registered by art school does not refer to any of Lu Xun’s works over which to claim authorship, descendants are defenceless in this respect.
The descendants can claim copyright through neither economic nor personality rights, only through a bare moral and social obligation to respect and defend reputation of Lu Xun. Authorship is a personality right, and as such is enforceable no matter time, as opposed to economic rights, which expire 50 years after author’s death.
2. Options under Amended Trademark Law of PRC
The Trademark Law of People’s Republic of China, Article 8, provides a definition of what signs may constitute a mark, whether a trade, service, collective or certification mark:
“Any visible sign capable of distinguishing goods of a natural person, legal person, or other organization from those of others, including words, graphs, letters, numerals, three-dimensional signs and combinations of colours as well as combinations of foregoing elements”.
The Country’s Trademark Law has no provisions forbidding adoption of famous names as trademarks. Practice indicates, however, that personal name which is to be applied for trademark registration must have a clear connection with name and with what it represents. In this respect, for instance, any athlete known to people may register his name as a sportswear brand.
