The Missing Piece: Protecting Fictional Character Merchandising Through Intellectual Property Rights and the Need for a Global Sui Generis Law

Abstract

This article examines the legal complexities surrounding the merchandising of fictional characters, with a particular focus on the globally recognized character of Barbie. In the absence of a sui generis legal system governing character merchandising, the owners and the rightful holders are dependent on existing intellectual property (IP) laws to protect their fictional creations. Through legal analysis and selected case studies, the article evaluates the strengths and limitations of each IP regime in offering effective protection by focusing on trademarks, copy rights, industrial designs and patents. Using Barbie as the central fictional character, this article illustrates how these IP rights may be strategically combined to construct a comprehensive protective framework. While these IP regimes collectively offer protective mechanism for fictional characters, this article also discusses the practical challenges such as overlapping scopes and territorial limitations that may hinder consistency and effectiveness of protection. In conclusion, this article argues for a sui generis legal framework to address the distinctive needs of fictional character merchandising in modern commercial and legal environments.