Explain whether or not the fact that Gabby’s surname is Rally gives her the right to use it any way she wishes. Gabby does not have the right to use her surname in any way she wishes. She does not have the right to use Rally as the name of her business although it may appear on her business license. The Lanham Trademark Act and the Federal Trademark Dilution Act of 1995 protects a company’s ownership rights to names, logo, or symbols that identify its products. The name Rally is identified with automobile sales. Gabby will cause the name to be identified with the sale of pizza. They are different industries however Herman has a right to prevent other companies from using the trade name “Rally.” Herman common law rights because he has used the name for forty years. The script indicates that Herman spends thousands of dollars per year in advertisements. Leading one to believe he has also registered the name. Herman identifies the potential problem of others wanting to use the name if he allows Gabby to use it as well. If that happened, there would be the potential for competition from a business with the same or similar products. Using the name Rally for Gabby’s Pizzeria is an example of infringement of the trademark law. The trademark law states a company must show that the competitors mark is likely to confuse consumers about the source of a product, or suggest that the trademark’s owner made an endorsement it didn’t make. In this scenario people were actually calling Rally Motors to place pizza orders. That behavior clearly identifies confusion for consumers.
Explain whether or not it matters that Rally is associated with pizza. In the text, Halbert (2011) explains how Ralph Nader was able to use the “priceless” slogan that MasterCard uses because viewers would not confuse his campaign with MasterCard. MasterCard would not be viewed as endorsing Nader. And further, the campaign could not harm MasterCard. One of the fuzziest lines to be drawn in the legal sands of intellectual property is the difference between a trademark and a trade name. Perhaps the simplest answer to that question is that trademarks (and service marks) are applied to goods and services while trade names identify businesses. However, in practice this distinction and the law that governs it, is not always clear (Beckman, 2009).
In the “Rally” name case the two businesses are in different industries, food and automotive. Trade name law is less concerned with confusion, and more so with deception and the resulting harm to business reputation (Beckman, 2009). The Pizza business will gain a boost by using the well established name and the auto dealer is feeling the pains of annoying phone calls. In Florida court of law (each state is different) a trade name holder had common law protection against subsequent use of the name by another. Therefore Gabby would have to give up use of the name. The law does however go on to say, subject to territorial limits defined by the scope of the business. Herman would have an uphill battle if Gabby did not willing stop using the name.
Explain how important the fact is that Herman started to use the name Rally first in that particular geographical area. The fact that Rally Motors has been in the area for forty years provides him with some advantage. Herman will have the advantage of common law rights to the name. The fact that the two companies are not in the same business industry also holds some weight for Gabby’s business. Under the definition of trade name, the courts have allowed two companies to use the same name unless the good will and reputation of an existing business extend into the market where a new business has opened Gabby is not trying to deceive anyone or show any type of endorsement or connection between her business and Rally Motors. The only harm shown in the video is the annoying phone calls. If they were in different states or areas, there would not be a difference because the numbers would be completely different. The other complaint that Herman had was advertising cost. Again, if the two businesses were in different geographical locations Gabby could not benefit from Herman’s advertisements.
Explain what rights you have in your trade name. Trademarks are words or symbols that are used to distinguish the products or services of one manufacturer/business or supplier from those of another. By registering a trade name, a business can obtain a monopoly of its trade name in relation to specified goods or services (Murphy, 1988). The abiding basis for trademark protection in the United States is “use in commerce.” [Once] a word, phrase, image or name has been used, then common law rights attach (Lutzker, p.1997).
Trade mark rights are acquired whenever and wherever a mark/name is adopted and affixed to a good or service that is offered for sale or in relation to commerce (Lutzker, p.65). In our case, Mr. Hays has been using the trade name “Rally’s” for some forty years. However, since common law rights are local, a broader protection would be required. In Halbert, (2011) it is stated The Federal Trademark law-the Lanham Trademark Act (1946) and the Federal Trademark Dilution Act of 1995 – protects a company’s ownership rights to [their] name, logo, or symbol that identifies its products. The afar mention acts provide regional and national protection. All states operate a trademark registration system for those who do business in the state. The trademarks/names are published in a registry, which constitutes effective notice to those doing business in the state. Secondly, in some states, registrants may be granted certain procedural advantages in the case of disputes. And finally, some judges who rarely deal with trademark matters are impressed with a state registration (Lutzker, p.66).
Explain what remedies you have if someone else infringes upon your trade name. The owner of a registered trademark/name may commence legal proceedings for trademark/name infringement to prevent unauthorized use of that trademark/name. However, registration is not required. The owner of a common law trademark may also file suit, but an unregistered mark may be protectable only within the geographical area within which it has been used or in geographical areas into which it may be reasonably expected to expand (Wikipedia). Under the federal law, there are several ways that a plaintiff can get if the defendant is found guilty of such infractions. The first is profits that the company has gained from using the same name and the infringement that was associated with the case. If damages were sustained by the plaintiff, loss of revenue and other name tarnishing things associated that can be proven that the defendant did, then that amount can be awarded also. The cost of the action can also be awarded to the plaintiff. Damages may be trebled upon showing of bad faith. In trademark dilution suits, however, damages are available only if the defendant willfully traded on the plaintiff's goodwill in using the mark. Most cases result is an injunction of the infringing company so that no other damages can be put on the original trademark. The cost of litigation can also be recovered if the company is found guilty of infringement (Lexis-Law).

References
Beckman, Joseph S. (2009). Trademark or Tradename?. The Intellect Law Group.
Halbert, T., & Ingulli, E. (2010). Law and Ethics in the Business Environment. (Strayer University Edition.) Mason, OH: South-West Cengage Learning. http://en.Wikipedia.org/wiki/Trademark (modified May 24, 2011). http://www.cengage.comcustom/dr_03_script.html. Lutzker, A., (1997). Copyrights and Trademarks for Media Professionals. Newton, MA: Butterworth-Heinemanne.
Murphy, J., & Rowe, M. (1988). Trademarks & Logos. Cincinnati, OH: North Light Books.