...Rally Round the Trade Name Assignment 5 Angela Jules Strayer University Prof Nashe LEG 500 March 9, 2011 1. Explain whether or not the fact that Gabby’s surname is Rally gives her the right to use it any way she wishes. Gabby has the right to use her surname any way she wishes. You have the right to keep your legal name and use it. In General, it makes no difference whether you are using your real name or any other name for your business. There are many businesses with different names that are not associated with the person what so ever. According to Search for Ancestors, “ A surname, also known as a last name or family name, is a fixed name shared in common with the members of a family and is passed down from generation to generation. The use of a surname is relatively new in history and was adopted in order to legally distinguish two individuals with the same first name.” Regardless of the fact that Rally Motors has been in business for a many years that does not give them exclusive rights. Per Gabby’s conversation with Herman she stated that she has used the Rally name for over 50 years and is using the name for her small business. Her attempt to contact Herman to explain the use of the Rally name was not to harm his business but show her pride with her given name. Herman’s only concern was about how much money he spent on advertisement to gain customers and trust within the community and that he had exclusive rights to the Rally name. With Rally Motors...
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...1. Explain whether or not the fact that Gabby’s surname is Rally gives her the right to use it any way she wishes. The fact that Gabby’s surname is Rally, doesn’t give her the right to use the name any way she wishes, especially in commerce. In this case, the name Rally is registered for Rally Motors and protected under the trademark law. Using the name Rally for Gabby’s pizzeria is an infringement of the trademark law. Trademarks are an intellectual property that grants the exclusive rights to the owner and governed by state and federal law in the U.S. In order to serve as a trademark, a mark must meet one of the requirements as follow: • Arbitrary or fanciful mark Mark has to bear no logical relationship to the underlying product. • Suggestive Mark Mark has to evoke or suggest a characteristic of the underlying goods. • Descriptive Mark Mark has to directly describes, rather than suggests, a characteristic of the underlying product. • Generic Mark Mark has to describe the general category to which the underlying product belongs (Harvard Law, n.d.). Rally is the mark that bears no logical relationship to the car dealership services and products. Therefore, Rally is categorized as arbitrary or fanciful mark. 2. Explain whether or not it matters that Rally is associated with pizza. The point to this question is will it be any effects of the association of Rally trade name, who is an auto dealership, to a pizza shop; is there any marketing benefit for the pizza...
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...Assignment # 5- Rally Round the Trade Name LEG 500 March 10, 2012 1. Explain whether or not the fact that Gabby’s surname is Rally gives her the right to use it any way she wishes. Gabby’s surname of Rally does not give her the right to use it any way she wishes as it relates to identifying a business. The reason is due to protection under common law and the possibility of infringing on the trade name of Rally associated with cars. Common law advises that a person who first uses a trade name in a specific location for a specific purpose has the rights to the trade name. According to the video Herman has been in business with Rally motors for over 40 years. The surname of Rally may belong to Gabby but it was not associated with a business and used for a specific purpose therefore she does not have the right to use it any way she wishes. 2. Explain whether or not it matters that Rally is associated with pizza. It does not matter that Rally is associated with pizza to the point of trade name infringement. However under common law it does matter that Rally is associated with pizza. Under trade name laws it protects the owner of the trade name from other individuals using the name to associate with similar goods or services. The distinction here is that pizza and cars and not considered in the same market or industry. In contrast, under common this changes in that it does matter that Rally is associated to pizza as protected under common law. Common law gives precedent to...
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...Rally Round the Trade Name 1) Explain whether or not the fact that Gabby’s surname is Rally gives her the right to use it any way she wishes. I believe that Gabby has the right to use her surname “Rally” in her pizza business because it’s a different business and is not harming the Rally motor business As long as it’s a different type of business, then Gabby can use the last name “Rally.” Now, if Gabby wants to open up an auto business, she cannot use Rally as the name of the business because it will be confliction with the already existing business. A name or a trademark is what differentiates a business from any other business. Each business name must be unique according to its form or type of business. Just like two corporations cannot have the same name within a state, two auto businesses in the same town cannot have the same name. Gabby cannot use her last name in any way she wishes to. If there already exists a business named “Gabby’s Auto’s” she cannot open another auto shop with that same name. If she were to be allowed to do so, confusion will be created amongst consumers. It would be unclear to which “Gabby’s Autos” one is referring to so she would have to change the name of her business to something else, something more distinguishing that would avoid any kind of confusion. Just because her last name is Rally, it doesn’t give her the right to use it as she pleases. If this were the case, millions of businesses would have the same name worldwide and there would...
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...1. Explain whether or not the fact that Gabby’s surname is Rally gives her the right to use it any way she wishes. To explain whether or not the fact that Gabby’s surname is Rally gives her the right to use in any way she wishes, it is important to verify who starts using the name in commerce first and if there is any intrusion on another trade name used by another business. As an example of how the court would verify this kind of situation, in the case RICHARD STORE CO. v. RICHARD'S WAREHOUSE SALES & AUCTION GALLERY, Inc. The Supreme Court affirmed in part and reversed in part a lower court decision that enjoined defendant from using the name "Richard" in its advertisements or to use it to acquaint the public with its goods or merchandise. The court held that the decree should have gone further and prohibited defendant from performing any act of advertising that would directly or indirectly represent to the public that plaintiff and defendant were affiliated. (63 So. 2d 502; 1953 Fla) In reference to the Gabby’s case, Gabby cannot use the name Rally’s as she wishes even though it is her surname. It is important to verify if any business in the local area is using that trade name. Of course she would be able to keep the legal name but always with a choice to change to a fictitious name if needed. It is required on all government forms and applications the use of a legal name of any business including applications for employer tax ID, licenses and permits...
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...Rally Round the Trade Name Professor Michael S. Green Law, Ethics and Corporate Governance 14 December 2011 1. Explain whether or not the fact that Gabby's surname is Rally gives her the right to use it any way she wishes. Since Gabby's surname is Rally it does not give her the right to use the name Rally as the lead name of her business. The Lanham Trademark Act which has a subsidiary division called the Federal Trademark Dilution Act of 1995, which protects company’s ownership rights to names, logos or symbols that depict the name of that business. In this case the name "Rally" has been identified as a prominent car dealership, we then have a brand new company in which its business is in food services. The intertwining of the same names is making it very difficult for anyone to distinguish between pizza pallor and a car dealership. The company "Rally Motors" has the legal right to prevent any other company from infringing on the use of the name "Rally". As Herman made very clear in the video presentation, "If I let you name your business "Rally", then I'll have a used car salesman calling his business "Rally", and he'll open p right across the street" (Rally Round the Trade Name skit). If Herman where to allow this to possibility continue , sooner or later, there would be other companies that would develop wit the same type of business plan and possibly overrun Herman’s car dealership. The usage of the name "Rally” for Gabby's pizzeria is a prime example of the...
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...1. Explain whether or not the fact that Gabby’s surname is Rally gives her the right to use it any way she wishes. Ownership rights to the name are protected by Federal trade mark law, through The Lanham Trademark Act (1946) and the Federal Trademark Dilution Act of 1995 (Halbert & Ingulli, 2011). Both Rally Motors and Rally Pizza have economic interest in the mark that they have created, Rally Motors created its mark associated to the automobile competition and Rally Pizza simple used the owner’s last name. Rally Motors wants to maintain its mark because the company has invested a lot in advertisements and Rally Pizza wants maintain its mark because it is recognized as good and fast delivery pizza and also because of the family’s name. However, the law does not grant any advantage to companies owned by people who have the mark as their surname. The Federal trademark law protects the company’s ownership rights for the company that first registered the mark. 2. Explain whether or not it matters that Rally is associated with pizza. The Federal trademark law prevents competitors from using the registered mark for their own benefit or in ways that would harm its rightful owner. However, even a non competitor can be considered guilty of dilution through an unauthorized use. Nevertheless, not every use can be considered an infringement or dilution of another’s trademark (Halbert & Ingulli, 2011). Finally, in accordance with the Federal law trademark, multiple parties may...
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...1. Explain whether or not the fact that Gabby’s surname is Rally gives her the right to use it any way she wishes. The Federal Trademark Law—Lanham Trademark Act (1946) offers protection and company’s legal right of ownership of its name, logo, or symbol that identifies its products (Halbert & Ingulli, 2010, 342) In this case Gabby is a pizza owner whose last name just happen to coincide with the name of a dealership Rally Motors. Since Gabby is within the same geographical area costumers are confused with its product. According to the Lanham Trademark Act (1946) this could be very well viewed as an infringement of property because it confuses the average consumer as to the nature of the product provided because of the name Rally. In essence, Gabby does not have the right to infringe on the name trademark of the dealership, just because her surname is Rally. Rally Motors has been in business for 40 years, with the same trade name, by using the same name, Gabby gives appearance of either endorsement or confusion as to the product they sell. 2. Explain whether or not it matters that Rally is associated with pizza. The purpose of protecting a company ownership right to its name, logo or symbol is its identity. As mentioned in the textbook Nike’s swoosh or McDonald’s golden arches are easily recognized when seen or when the name is heard (Halbert & Ingulli, 2010, 342). In this case Herman, owner of the dealership, explains that they have been in business for forty years...
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...Rally Round the Trade Name Rally Round the Trade Name Explain whether or not the fact that Gabby’s surname is Rally gives her the right to use it any way she wishes. In this case Gabby Rally is operating a pizza business under the name Rally Pizza, which is taken from her surname Rally. However, within the same geographical location a car dealership already uses the name Rally Motors. The dealership has been using this name for over forty years and Rally Pizza has just recently opened. The name of the dealership is not associated with the surname of the current owner Herman Hays. Regardless that Gabby’s surname is Rally she is not legally able to use that name in commerce. Her use of the business name Rally Pizza is infringement on the intellectual property of Rally Motor. The Lanham Trademark Act (1949), the Federal Trademark Dilution Act of 1955, and common law provides the legal background protecting the trademarks of business. These acts “protect a company’s ownership rights to the name, logo, or symbol that identifies its products” (Halbert & Ingulli, 2010, p. 342). Section 1114 of the Lanham Trademark Act (1949) states: Any person who shall, without the consent of the registrant use in commerce any reproduction […] of a registered mark in connection with the sale […] of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; […] shall be liable in a civil action by the registrant for the remedies...
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...RALLY ROUND THE TRADE NAME T G Professor: Christina JG Williams, Esq. Course: LEG 500 December 4, 2011 Explain whether or not the fact that Gabby’s surname is Rally gives her the right to use it any way she wishes. A business owner by the Name of Gabby Rally has opened a pizza shop by the name Rally Pizza. However, within the same geographical location a car dealership already uses the name Rally Motors. The dealership has been using this name for over forty years and Rally Pizza has just recently opened. The name of the dealership is not associated with the surname of the current owner Herman Hays. Regardless that Gabby’s surname is Rally she is not legally able to use that name in commerce. Her use of the business name Rally Pizza is infringement on the intellectual property of Rally Motor. The Lanham Trademark Act (1949), the Federal Trademark Dilution Act of 1955, and common law provides the legal background protecting the trademarks of business. These acts “protect a company’s ownership rights to the name, logo, or symbol that identifies its products” (Halbert & Ingulli, 2010, p. 342). Section 1114 of the Lanham Trademark Act (1949) states: Any person who shall, without the consent of the registrant use in commerce any reproduction of a registered mark in connection with the sale of any goods or services on or in connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; shall be liable in a civil action by the registrant...
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...Rally Round the Trade Name TABLE OF CONTENTS Rights of a surname 3 REMEDIES OF INFRINGMENT 5 REFERENCES 7 Question 1: Explain whether or not the fact that Gabby’s surname is Rally gives her the right to use it any way she wishes. Gabby is within her rights to use her surname in any manner she chooses to. This right is backed by the right of publicity law. The right of publicity basically states that an individual has the right to control and profit from the commercial use of his/his name, likeness, and persona (Rich, 2000). However, this matter cannot be easily sided since the owner of Rally Motors has been using the Rally name for his business for the past forty years. The Federal Trademark Dilution Act of 1995 protects a company’s ownership rights to the name, logo, or symbol that identifies its products (Halbert & Ingulli, 2010). As the owner of Rally Motors, Herman Hayes has an economic interest in the business name and a right to protect it from competitors using it for their own benefit that may reflect negatively or cause financial harm to the company. Herman states that he spends three hundred thousand dollars a year in advertisement so people know about Rally Motors. The resources being put into advertising does not clearly state to me that his has sole ownership of the name prohibiting others from using it. So unless Herman successfully filed a trademark application for the exclusive rights to the Rally name, he doesn’t have a legitimate...
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...Tracy Adams Assignment 5 Law & Ethics Sept 1, 2011 This case is about Rally Round the Trade name. This case tells the story of a pizza parlor owner and a car dealership owner who carry the same trade name. The case will discuss five areas. One, the case will determine if a person has the right to use his or surname any ways they choose to. Two the case will answer if it matters if a person’s name is associated to a franchise or business. Three, what is the importance of a person using their name in a particular geographical area and the time frame will be addressed. Four, the case will give an explanation of a person’s rights when using their trade name will also be discussed. Five, the case will discuss the option a person has when their trade name has been infringed upon. . Explain whether or not the fact that Gabby’s surname is Rally gives her the right to use it any way she wishes. Explain whether or not it if matters that rally is associated with pizza. The name Rally has been used in many different forms all over the United States so this may vary on opinion. For example the name Rally has been utilized for pep rallies, franchises called Rally Burger, and the term rally. In this case, Rally is associated with pizza and automobiles but they are different products, as this will matter in legal terms. As stated later in this case, these products differ but they are not distinctive, because they are totally different products and are not in competition...
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