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 with each other. A trademark has to be distinctive to be qualified as a legal trademark and another trademark with the same has to be of the same product to be considered trademark infringement (Trademark Law, 2011). When the use of a trademark name is associated with the same product, it is then considered trademark infringement. For example; Apple computers is known for its logo and tradename, and if another computer company begins selling computers with the name apple, it would be considered infringement because these are of the same products with the same name. Thus, Apple computer and the brand jeans Apple Bottoms can both exist since these are totally different products.

Explain how important the fact that Herman stared to use the name Rally in that particular geographical area. To Herman this tradename has been well known as Rally’s Car’s Sales for many years and it is too important to infringe upon by a pizza parlor. The fact that Herman has been in business for forty years is a very important element in this case. What has to be determined is if the trade name is legal and protected under law. Herman stated that he spend hundreds of thousands of dollars every year to advertise his trade name. The conflict that is seen is this case at the moment is the telephone mix up; customers see the name Rally in the phone and assume that number is for the pizza parlor. The product in which Herman sales is totally different to the product that gabby sales, which is pizza. In this scenario the only infringement that has occurred is that Gabby pizza parlor is located in the same area as Herman’s dealership and it has the same name. There is not really a legal trademark infringement in this case as according to (Halbert, T., Ingulli, E. p. 342, 2010), infringement requires proof that that the utilization of a competitors name or mark will likely confuse the customer about the source of the product or suggest that the trademark owner made an endorsement that they did not produce.

Explain what rights you have in your tradename. Trademarks vary and can be very distinctive. In order to identify what rights a person has under their tradename or trademark, we must first discuss the different elements of trademarks or tradenames. Trademarks are grouped into 4 different categories to include, arbitrary or fanciful, suggestive, descriptive, and generic. As stated by (Trademark Law, 2011), trademarks have to be distinctive from others name to serve as a qualified name. Arbitrary have no direct relationship to the objective product, nor does the name explain this products similarity. However, arbitrary names are very distinctive are definitely protected under the trademark category. Suggestive marks correspond to the underlying product and attempt to explain the relationship between the two. Although suggestive marks are not directly related to the product, they are not totally unassociated with the product. Descriptive marks by all means, attempt to directly associate itself with the underlying product as it gives definitive information regarding the product that correlates itself with the name. descriptive must acquire a secondary meaning in order to have protection under trade law. Generic marks are associated with products that describe the underlying meaning of that particular product. Therefore these forms of names have no legal protection under law Trade Law, 2011).

Explain what remedies you have if someone infringes upon your trade name. To elect solutions for trade name infringement, it has to be established that a trade name has been infringed upon. For starters, the person or company has to have legal ownership of that particular tradename. If the trademark used causes disturbance amongst the product being produced or served, this may be considered trademark infringement. There are various determination factor when deciding on trademark infringement and they include: (1) how strong the product is on the market; the location of the product and they following product; (3) the similarity of the product; (4) physical evidence of the distracting product; (5) what marketing channels are used in comparison to the other product; what caution a consumer uses when attempting to purchases to product (Trade Law, 2011). Once it determined that trademark infringe has occurred, owner of trademarks may sue for legal action against defendants of trademark infringement. Plaintiffs against trademark infringement has the option of filing for dissolution of trademark or tradename under federal or state law, but before decision are made by courts a decision has to be determined on whether the mark is famous. Trademark Law, (2011), states that a determination will be based on four factors to include, (1) the extent of acquired distinctiveness: (2) the length of time the name was used; (3) the extent of advertising and publicity; (4) the location of the market; (5) what channels that were used for trade; (6) how recognized was the trading area; (7) any other marks used by third parties. In some instances, it is possible for one trademark owner to relocate to another state and carry on the same tradename.

This case involved Gabby, a pizza parlor owner and Herman, a car dealership owner who has both utilized the trademark named Rally. While one owner has used the name for business for forty years, the other party has carried the same name for fifty years. Herman uses the defense that he has spent hundreds of thousands of dollar on advertising this name for automobiles and this name cannot be used to sell pizza. However, Gabby attempted to make amends with Herman with no success. Gabby who is just a small pizza parlor as opposed to Herman, a large car dealership owner does not have the financial stability to stand up to Herman in court and fight for her name in good faith. Clearly there has been no trademark infringement since these businesses have totally different products and are not in competition with each other. the only confusion seen in this case is a mix up with telephone numbers. It is very possible that Gabby does not know her rights as an owner, and she does not have the money to go to court, she unwilling agreed to give up her tradename. Trademarks are established to enable consumers to identify similar products from each other. For example Coca-Cola’s trademark distinguishes it name from Pepsi-Cola, a similar product as both of these beverages have distinctive tastes and they are in competition with each other and are both well known to consumers (Trademark Law, 2011). In essence, we must analyze what constitutes trademark infringement before we make determinations on other trademarks.

References

Halbert, T., Ingulli, E. (2009). Law and Ethics in the Business Environment; 2010 custom (6e). South West Cengage Learning

American Car Center, (2011).

Overview of Trademark Law. Retrieved on August 31, 2011.

https://www.cyberlaw.harvard.edu/metaschool/fisher.domain/tm.htm