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 claim to prevent Gabby Rally from using it for her pizza business. Question 2: Explain whether or not it matters that Rally is associated with pizza. The premise behind a trademark simply stated, is identification. 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). For forty years Herman worked to ensure when people thought of automobiles they thought about Rally Motors. Herman has a reasonable cause for alarm when a new business opens up that has a name similar to his own company’s name. His business has already experienced the issue with the opening of Rally Pizza through the daily phone calls being received from customers wanting a pizza and not an automobile. Instead of calling the pizzeria customers are reaching Rally Motors and even though they are two completely different businesses Rally Pizza may be infringing upon Rally Motors rights. It would ultimately be up to the courts to determine if the law has been broken but it would be my assessment that factors to look at to determine if this is such a case would be: 1. The level of confusion (evidence would be required); 2. Similarities in the name and/or logo; 3. Relatedness of the products or services; 4. The intent of the defendant for selecting the name and/or logo. Question 3: Explain how important the fact is that Herman started to use the name Rally first in that particular geographical area. As stated in the video clip, Herman has been in business and using the Rally Motors name for forty years. He has established the business and built a reputation under that name which has benefited him for the past four decades. Using the Rally name in that particular geographical area first can be very important provided that he has been the only business in the area using that name. His business has become a staple in the neighborhood and worked hard at branding. He wants people who think of Rally to think of automobiles only and doesn’t agree with Gabby that when they think of pizza they will think of Rally Motors. Herman has obviously understood that providing quality vehicles and service is crucial to maintaining a successful business and it’s not fair that a new business is benefiting from the name recognition. After being in business for so long, to have a new business with a similar name called Rally Pizza open up rightly so will raise some concern. The issue here is that it is not illegal to use a name similar to an existing business if you are in different industries with different products/services. Question 4: Explain what rights you have in your trade name. It’s important to understand the difference between trade name and trademark. A trade name is a name used to identify a commercial product or service, which may or may not be registered as a trademark. It’s the name by which the business operates under; the name by which a commodity, service, or process is known to the trade. Example: Boeing is synonymous with aerospace; airplanes and helicopters. Whereas a trademark would be a distinctive design, picture, emblem, logo, or wording used to identify the manufacturer of a product (Hill & Hill). However, if the business uses its trade name as the name of the product of service, the name could be the trademark. Your rights vary based on the business structure being used. For example, a sole proprietor has the right to use their own name for the business unless they formally file another name as a trade name. It’s important to know that a business may only register the name locally, so it is possible that the same name is being used elsewhere (Name your Business). This is where a business owner should do their due diligence and search the name through the U.S. Patent and Trademark Office.

Question 5: Explain what remedies you have if someone else infringes upon your trade name. There are two scenarios to be addressed here. The first scenario would be that your trade name is registered. A registered trade name would allow for a legitimate complaint to be filed with the courts. In order for the affected business to make their case stronger it should provide evidence that the alleged infringement is causing distress to their business; such as customers clearly being confused and instead of reaching them they are reaching their competitor. This could potentially result in lost revenue. You could ask the courts to prevent the business from using the name to stop further infringement. Should injury to the reputation of the business be incurred or the value of the trademark be diluted, the infringing business could be held liable (Yeh, 2008). The second scenario would be that your trade name is not registered. You’ll want to check if your competitor or new business has registered the name and if not here is your opportunity to do so. In either case the question could be raised as to who owns the intellectul property rights. Rally Motors has been selling cars under the trade name for forty years but Gabby Rally has the right to open a pizza business using her surname. Neither business registered the name for exclusive rights and even though their businesses are in the same locale, they are completely different and should not confuse buyers. Thefore, Gabby does have the right to keep her business name and so does Herman.

References

Halbert, T., & Ingulli, E. (2010). Law and Ethics In The Business Environment. Mason: Cengage Learning.
Hill, G., & Hill, K. (n.d.). Legal Terms and Dictionary. Retrieved December 12, 2010, from Law.com: http://dictionary.law.com/Default.aspx?selected=2144
Name your Business. (n.d.). Retrieved December 12, 2010, from U.S. Small Business Administration: http://www.sba.gov/smallbusinessplanner/start/nameyourbusiness/index.html
Rich, L. L. (2000). Right of Publicity. Retrieved December 12, 2010, from The Publishing Law Center: http://www.publaw.com/rightpriv.html
Yeh, B. T. (2008, October 31). CRS Report for Congress. Retrieved December 12, 2010, from Federation of American Scientists: http://www.fas.org/sgp/crs/misc/RL34109.pdf