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. This legal name does not reflect on the name that the business wants to use on its regular operations. To use a different name a business should have a fictitious name registered with the local government agency. As explained by SBA.gov, 2011 “A fictitious name (or assumed name, trade name or DBA name, which is short for "doing business as") is a business name that is different from your personal name, the names of your partners or the officially registered name of your LLC or corporation.” (http://www.sba.gov/content/register-your-fictitious-or-doing-business-dba-name/) 2. Explain whether or not it matters that Rally is associated with pizza.

The use of a trademark in connection with the sale of a good represents violation if it is likely to grounds consumer confusion as to the source of those goods. In deciding whether consumers are likely to be confused, the courts will typically look to a number of factors, including: (1) the strength of the mark; (2) the proximity of the goods; (3) the similarity of the marks; (4) evidence of actual confusion; (5) the similarity of marketing channels used; (6) the degree of caution exercised by the typical purchaser; (7) the defendant's intent. (http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm) In the case, Polaroid Corp. v. Polarad Elect. Corp., it is clear the factors that determined infringement of trademark. Where the products are different, a prior owner's chance of success in a trademark infringement action is a function of many variables: the strength of his mark, the degree of similarity between the two marks, the proximity of the products, the likelihood that the prior owner will bridge the gap, actual confusion, and the reciprocal of defendant's good faith in adopting its own mark, the quality of defendant's product, and the sophistication of the buyers. (287 F.2d 492 (2d Cir.), cert. denied, 368 U.S. 820) In this case it doesn’t matter if the name Rally is associated with pizza or with cars, what is important is the name Rally that can confuse people in the same market area. Rally’s motors have been receiving a number of phone calls from customers with the desire to order pizza which proves the confusion on customer’s minds about the “Rally’s” trade name. At the video it seems that Herman registered the name “Rally” and this give him the right of exclusivity.
3. Explain how important the fact is that Herman started to use the name Rally first in that particular geographical area. In the video shows that Herman started using the name “Rally’s” 40 years ago in that area, because of the registration of the name and the fact that he was the first one using it in the area gives him the right of trade name protection protected under a common law. Common law indicates that any person or business that uses the name first, in a particular geographic region and for a specific purpose will be protected. With the registration of the trade name with the United States Patent Office protects the trade name of any business owner, and regulates that no other person or business in the jurisdiction in which the trade name was registered can use the name after the date of registration (Jamie, D, 2009). A good illustration of this issue is in the case NATIONAL GROCERY COMPANY v. NATIONAL STORES CORPORATION
"Obviously, by force of the definition of the kind of business in which the parties are engaged, each store must draw its trade from a very small surrounding territory, because customers obliged to pay cash and carry away their purchases will not patronize a store unless within their immediate neighborhood."(95 N.J. Eq. 588; 123 A. 740; 1924 N.J) To better answer this question the timing and the geographic area of the business using the trade name does makes a lot of difference. In this case it is very important and it is the factor that would qualify Herman the right to keep the name. Depending on the state he would have this right because of being the first using the name in that location or because he registered the name.

4. Explain what rights you have in your trade name.

There are many rights that business owners have as they have their trade name. They have the restricted right to use their trade name in that particular location without being in straight competition with another business that is looking for using the same name. The individuality of the trade name is possibly not more important than the extent of time that it has been used. The trade name owner have the capacity promote and market their business and expand their business in zones of reputation, expansion, marketing and build the connection in the public's eye of the trade name with the product or service. After the trade name is registered, no other business can come and use your name intentionally or unintentionally. The compliance of the owner of the trade name protects the distinctiveness against all infringements
As explained by Legal Dictionary, 2011: Trade name regulation serves four purposes. First, the law seeks to protect the economic, intellectual, and creative investments made by businesses in distinguishing their trades. Second, the law seeks to preserve the good will and reputation that are often associated with a particular trade name. Third, the law seeks to promote clarity and stability in the marketplace by encouraging consumers to rely on a merchant's trade name when evaluating the quality of its merchandise. Fourth, the law seeks to increase competition by requiring businesses to associate their own trade names with the value and quality of their goods and services.
(http://legal-dictionary.thefreedictionary.com/trade+name)

5. Explain what remedies you have if someone else infringes upon your trade name.

If someone else infringes upon your trade name and you fall under one of the protection categories you can always seek protection at the federal and state level. According legaldictionary, 2011, both federal and state laws protect against trade name infringement. At the federal level, trade names are protected by the Lanham Trademark Act and at the state level; trade names are regulated by analogous intellectual property statutes and common law doctrines. Both state and federal laws provide protection against trade name infringement. Business that are seeking to avail their businesses after trade name infringement, can seek a court order to restrain the other business from utilizing their trade name and/or monetary compensation for any losses the business faced as a result of the trade name infringement. (http://legal-dictionary.thefreedictionary.com/trade+name)
As explained by Legal Dictionary, 2011:
Once a business has established the right to use a particular trade name, it must then prove that the defendant fraudulently attempted to pass itself off as the plaintiff through use of a deceptively similar name. Not every trade name that resembles an existing one will give rise to liability for infringement. The law will not forbid two unrelated businesses from using the same trade name so long as their coexistence creates no substantial risk of confusion among the public (http://legal-dictionary.thefreedictionary.com/trade+name In this case a good solution would be some kind of agreement between Gabby and Herman expressed on a contract where as an example Gabby would give Herman a percentage on the profit using the trade name. Or Gabby could just change the name of the business and use a “fictitious name” just as DBA (doing business as) and keep running the pizzeria.

References
Jamie, D, 2009. Trade names and Trademarks – What’s the difference? Retrieved on Jun 12, 2011 from: sba.gov website : http://community.sba.gov/community/blogs/community-blogs/business-law-advisor/trade-names-and-trademarks-whats-difference

Legal Dictionary, 2011. Trade name. Retrieved on Jun 13, 2011 from: legaldictionary website: http://legal-dictionary.thefreedictionary.com/trade+name

NATIONAL GROCERY COMPANY v. NATIONAL STORES CORPORATION [NO NUMBER IN ORIGINAL]COURT OF CHANCERY OF NEW JERSEY 95 N.J. Eq. 588; 123 A. 740; 1924 N.J. Ch. LEXIS 252; 10 B Stockton 588
February 29, 1924, Decided
N.R, 2011. Overview of Trademark Law. Retrieved on Jun 11, 2011 from: (http://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm)
POLAROID CORPORATION v. POLARAD ELECTRONICS CORPORATION No. 162, Docket 26460 UNITED STATES COURT OF APPEALS SECOND CIRCUIT 287 F.2d 492; 1961 U.S. App. LEXIS 5191; 128 U.S.P.Q. (BNA) 411; 4 Fed. R. Serv. 2d (Callaghan) 81January 17, 1961, Argued February 28, 1961, Decided

RICHARD STORE CO. v. RICHARD'S WAREHOUSE SALES & AUCTION GALLERY, Inc.[NO DOCKET NUMBER] SUPREME COURT OF FLORIDA, Division A 63 So. 2d 502; 1953 Fla. LEXIS 1126 March 3, 1953

U.S. Small Business Administration.gov, 2011. Register your fictitious or “doing business as” (DBA) name. Retrieved on Jun 12, 2011 from sba.gov website: http://www.sba.gov/content/register-your-fictitious-or-doing-business-dba-name/