Intellectual Property Rally Round the Trade Name - Assignment Example

Intellectual Property: Rally Round the Trade Name All the rights afforded to human beings are not absolute. Every right given to a person has an extent on its own. This means that limitations are present to guide people on how to use and how to take care of their rights without infringing on some other person’s rights. It is a must that everyone to understand that the constitution prevents overlapping of rights as much as possible. If in any case, actions of humans violate the rights of some people, then the tendency is for that particular action to be resolved through the principles of legal ethics, law and corporate governance (Robles, 1998). The script Rally Round the Trade Name discusses a situation in which a name of a newly built business establishment coincides with the name of another. Although the two businesses operate on different industries, people easily get confused on which number to call considering that the name of both establishments are exactly the same: Rally Pizza and Rally Motors. When Gabby Rally named her Pizza store after her surname, Rally Motors felt that their establishment was suddenly threatened because of the confusion that Rally Pizza creates to the public. Every person has the right to use his or her surname to title any establishment that he or she wishes. However, this right is not absolute. But the time that the safety of free trade of another establishment, then this right shall be cut short. The determination of the exclusivity of naming of a business establishment depends upon who used the name first. Gabby Rally cannot just wish to use her surname in any way she wishes for she must be aware that it could harm the existence of another pre-established business (“Name Your Business,” 2010). The better gist in the script is the association of the name Rally to both Pizza and Motor business ventures. It matters so much for the name Rally to be highly associated with Pizza. Take note that Rally Motors spend $300,000 for advertisement every year; because of this, Rally Motors must have an exclusive right for the popularity that the name Rally gets out of the advertisements they pay for. Unless Rally Pizza pays for advertisement to clarify the association of the name Rally to pizza, then their right to use it will not be infringed upon. However, the script clearly suggests that people get confused and easily associates Rally with Pizza and not just Motors. This is a proof that Rally Pizza gets to have a free associational advertisement because of the motor company which constantly pays to advertise the name Rally. On the higher note, another issue in the script is the geographical conflict that the two establishments have. As much as possible, the law protects the right of an establishment to prosper in a certain geographical area. The primary thing that could harm an establishment’s prosperity is the free market competition. However, free market competition is actually encouraged by the state for it makes the quality of the products of businesses of the same industry better. Apart from the conflict in advertisement, the script also shows a conflict in the geographical situation. Both Rally Pizza and Rally Motors are located on the same place. The problem now is that people tend to confuse not just the name and the number of both establishments but also their geographical location. It would be so confusing for consumers to see that there are two Rally businesses located in a small area. It is assumed that the advertisement contains the place where the Rally Motors could be located; therefore, even the location of the Rally Pizza is freely advertised. Advertising laws do not prevent businesses of different industries to be located in a proximate distance, the problem is when they use the same name it confuses the people. This is the reason why consumers call the wrong number or maybe some consumers think that the owner of Rally Pizza and Rally Motors is the same person thus, the consumers innocently call Rally Motor’s number regarding Pizza information. The constitution about it states that law recognizes that identical or similar trademarks may co-exist if each is used in discrete geographic areas, as concurrent uses. Example of this is with the RV market for the name “Adventure RV.” All three panelists concur on the issue of reverse domain name hijacking. Two of them make explicit reference to the geographic limitation of the trademark. The “Complainant must have known it could not demonstrate bad faith registration and use, given the weakness of its trademark … and the inherent unlikeliness that Respondent could have had Complainant in mind when registering the Domain Name, given the narrow geographic scope of Complainant’s activities and the many concurrent users of the same name” (Levine, 2010). Trade name is a very important factor in the promotion of the business. Trade name distinguishes a business enterprise from other business enterprises. The law does not prevent two enterprises of different industries to have the same name so long as they do not affect one another’s business interests and they do not create confusion to the customers. But the case of the Rally Motors and Rally Pizza clearly creates confusion among the public. The law clearly states that: 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. For instance, two businesses may call themselves "Triple Play" if one business is a video store and the other is a sports bar and grill. By the same token, the law permits businesses in different geographic markets to use identical trade names, unless the good will and reputation of an existing business extend into the market where a new business has opened (“Trade Name,” n.d.). In case someone else has used the trade name of a certain business venture just like what the script presents, then there are a lot of ways to resolve the conflict. First, they could talk about it like what has happened in the script and the other business may choose to change name to avoid legal battle. Second, one party may choose to transfer to another location, make advertisements of their own to avoid confusion of the public. Take note that as stated above, it is not prohibited to have two businesses of the same name in one location, but in this case the Rally Pizza is already confusing the public regarding the phone number, location and product that Rally Motors, a supposed registered trade name. Therefore, it is necessary to resolve the conflict. If in case, both parties do not want to settle the dispute outside the court of law, then the conflict will be elevated in the court of justice to see which business enterprise shall be granted the right to bear the trade name. Remember that 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 meaning to say, by the time that the association of name of a registered and established business enterprise is confused to a newly formed one, there is a necessity for the conflict to be resolved in the court (“Trade Name,” n.d.). The best thing that the complainant could do is to present to the court that its association and goodwill is already harmed because of another association regarding trade name of a newly built business enterprise, through public confusion for example. Because of this public confusion, there is a right for the previous owner of the trade name to sue the Rally Pizza for the infringement of trade name exclusivity which they have created (McHale & Pittman, 2004). References Levine, G. (2010, May 7). Narrow Trademark Rights confined to geographic area in which holder does business. Retrieved from http://udrpcommentaries.wordpress.com/2010/05/07/narrow-trademark-rights-confined-to-geographic-area-in-which-holder-does-business/ McHale, B., & Pittman, S. (2004, June). Advertising laws and reguations handbook. Retrieved from http://www.indianabroadcasters.org/information/publications/Advertising%20Guidelines.pdf Name Your Business. (2010). Retrieved from http://www.sba.gov/smallbusinessplanner/start/nameyourbusiness/index.html Robles, C. (1998). Business organizations at a glance. Retrieved from http://www.chanrobles.com/legal5cc1b.htm Trade Name. (n.d.) Retrieved from http://www.answers.com/topic/trade-name Read More