The merchandising contract is a marketing and advertising technique. In essence, it consists in the possibility of exploiting a brand, its notoriety, its diffusion and popularity in the consumer public for commercial purposes. Since its inception and for a long time, the phenomenon of merchandising on the one hand has highlighted the large profits it was able to generate, but on the other it has posed legal problems in relation to its discipline.
Originally, in fact, lacking the concept of trademark as a legal asset in itself, with its own intrinsic value, even the discipline of merchandising had remained in an embryonic state. Over time, the jurisprudence has reconstructed the concept of trademark as a legal asset capable of economic exploitation and, therefore, worthy and susceptible of protection. So also the practice of merchandising began to receive discipline and protection, until today it has become a particularly widespread legal and advertising tool.
Merchandising: The contract From a strictly legal point of view it must be said that merchandising is a contract under which the owner of the rights to use a name, intellectual creation or trademark gives to an entrepreneur the power to exploit these rights to put in place trade products marked by those signs. On the one hand, therefore, the entrepreneur – called the licensee – exploits the symbolic value, for example, of the brand to market its products, on the other the licensor (i.e. the right holder) takes advantage of the value inherent in the brand itself, obtaining compensation economic from the licensee which is generally expected as a percentage of the licensee’s earnings. In commercial practice, the term merchandising indicates both the advertising material to promote the sale of the products covered by the distribution contract and the contract having as its object the care of displaying the products in the spaces and on the appropriate sales counters of a department store. or shopping center. It is true, however, that in practice it is often difficult to distinguish the merchandising contract from other commercial contracts and in particular from the sponsorship one, as the conclusion of mixed contracts is frequent. Think, for example, of the case in which the sponsor who supports a sports team or an event not only receives the right to qualify as an official sponsor and to see its brand appear in different ways, but is also authorized to mark a range of products with the hallmarks of the organization or sponsored event.
In practice there are three different types of merchandising depending on the subject of the contract. It’s about merchandising: trademark, which exploits famous brands in sectors other than the original ones; of copyright, which uses creations protected by copyright to promote the sale of products in product sectors other than those to which they belong; of personality rights that exploit the name or image of famous people.
Brand merchandising: Brand merchandising, also called brand, is used for the exploitation of famous brands in product sectors other than those in which it has a certain reputation. The famous brand can be used to distinguish a very large series of products () without even the slightest relevance to the product that made the famous brand. Think for example of those brands used for products ranging from aftershave for men to shoes or even from clothing to home textiles. The brand owner can obviously grant the use to more entrepreneurs, depending on the type of goods on which affixes the brand. What is fundamental is that the ban on using the trademark must always be respected in order to mislead consumers about the origin of the product from the owner of the original trademark. The licensee must therefore adopt, in the use of the brand, all the necessary precautions to inform consumers about the real origin of the product from its real owner.
Precisely in this lies the diversity between merchandising and the trademark license, where, instead, the trademark is granted precisely to be affixed to products or services equal to or similar to those for which it was originally conceived and affixed by its owner.
The merchandising of intellectual creations protected by copyright, also called character merchandising, has as its object the transfer of the rights on these creations to an entrepreneur who intends to exploit them through the use on clothing, accessories, games and more. For example, characters from cartoons and comics, films, short stories and novels, but also phrases or titles of literary or record works can be sold to be exploited.
Merchandising of personality rights
Finally, the merchandising of personality rights, called personality merchandising, has as its object the name or image of a subject who, due to his fame, celebrity or notoriety, can attract customers’ interest in a specific commercial product. The subjects that can be exploited economically can belong to any category: famous actors, show business characters, musicians, singers, sports champions, politicians, scientists or writers. The personality merchandising contract is concluded between the known person and the entrepreneur who wants to market goods identified by the name, face or other signs belonging to that person. The latter, moreover, can give its consent for the exploitation of the image to multiple entrepreneurs, depending on the type of goods that must be placed on the market.