As Article 993 of the Civil Code does not distinguish between “commercial purposes” and “non-commercial purposes”, there is no basis for establishing a “binary” protection model. The right created by the “license” is not a “merchandising right”, but a usufructuary right. The user has “dominant power” over the personality mark based on the relationship of debt, and forms a conceptual possession shape that is protected by tort law. The subject of Article 993 should be expanded to “named groups”. “Names, enterprise name, likeness” should exclude religious names, duplicate names, names that are duplicates of previous names but have been registered, and corporate images. “Etc” personality mark includes “voice” and “personal information” as main protection objects. The scope of application of Article 993 should be interpreted in a limited way to bridge the gap between “own” restrictions and social reality. The “merchandising right” in the context of our country is essentially the “right bundle” of different types of “licenses” created by Article 993 of the Civil Code, Article 24 of the Copyright Law, and Article 43 of the Trademark Law. It is also protected by Article 6 of the Anti-Unfair Competition Law.
李运达. 《民法典》人格标识“许可使用”的规范解释——以第993条适用范围为重点[J]. 浙江工商大学学报, 2021, 35(5): 116-126.
LI Yunda. Normative Interpretation of the “Licensed Use” of the Personality Mark in the Civil Code: the Scope of Article 993 as the Focus. Journal of Zhejing Gongshang University, 2021, 35(5): 116-126.