Rally Round the Trade Name - Essay Example

Rally Round the Trade Name Introduction Trade name infringement can be a serious matter to business owners, especially those who are tremendously successful. This is because they spend a lot of resources establishing a positive image in order to attract customers and maintain good reputations. As a result, when another business comes to the market and uses their name whether intentionally or unintentionally a conflict arises between the two businesses. This can lead to profit loss and denigration of favorable reputation. In the video Rally Round the Trade Name, it is evident that trade name infringement is a grave offense to business proprietors who have already established their business image. This paper discusses about different aspects associated with trade name protection and will refer to “Rally Round the Trade Name” video in explaining the situation. Explain whether or not the fact that gabby’s surname is rally gives her the right to use it any way she wishes Despite the fact that Gabby’s surname is Rally, it is not lawful for her to use it for her piazza business in the same jurisdiction as occupied by Rally motors. This is because for one, a trade name is given under two different laws; common law and trade name registration law according to Tatum (2010). Under common law, an individual who first uses a certain trade name in a particular region for a particular purpose has exclusive rights for that name in the particular areas for that specific purpose. As a result, Gabby is not supposed to use her surname in conjunction with her business in the region. Doing this amounts to violating the law and infringing on trade name rights. According to intellectual property law, it is illegal to infringe on a trade name whether one posses the name or not. Explain whether or not it matters that rally is associated with pizza The issue of trade name protection goes beyond zones of reputation, expansion and marketing despite being the first to be used in the region. Since Rally is linked with both pizza and motors, it is not a big conflict as it would happen if Gabby had decided to name her car dealership business as Rally Used Cars. It is unlawful for a similar business owner to possess two confusing names for his/ her business. Therefore, there is no problem with Rally’s association with pizza if only she does not use her name confusingly. This is because using this name does not imply that people might confuse pizza with cars. However, when two business use the same trade name in a similar market region this can lead to a lot of confusion. Herman’s use of Rally in the geographical area first The truth that Herman started utilizing the name Rally around forty years ago, protects him under both trade name registration law and the under the common law. He is also protected by the fact that he started using the trade name in the region first, before Gabby. The common law argues that any one who uses the name for the first time in a given geographic area and for particular reason(s) is given protection as suggested by Grant, Ashworth and Charmasson (2008). Moreover, the trade name registration body provides protection of a trade name for any business proprietor. It also postulates that a trade name cannot be used by any other business person after it has been first registered by another business owner in a given jurisdiction. In this case, if Herman had not registered this trade name then the trade name registry protection laws would have the right to deny him the trade name. Rights in the trade name The law assumes that a trademark to be type of property. Hence proprietary rights in connection with trade mark may be found through real use in the market or by ensuring the mark is recorded with a trademark registry of a particular area. This is to the extent that the owner of the trade name can prevent unlawful use of the trade name. The owner of trade name has right to be compensated for any loss incurred as a result of trade name infringement. Therefore, it is the right of the trade name owner to present to a court of law any slander or attempted trade name infringement. It is also the right of a trade name owner to ensure that he/she has registered his business with the trade name with the trade name offices in his/her jurisdiction. Remedies for infringment upon your trade name In a case someone enters a market and infringes on a trade name, it is always right to request for injunctive relief as well as protection from the state and/or federal government. Both the state and the federal laws provide protection against trade name infringement according to Olson (n.d). The Lanham Trademark Act protects trade names at the federal level while at state level trade names are protected by equivalent intellectual property laws and common law policies. Businesses compensation for their business due to trade name infringement are allowed to seek orders from court in order to restrain the accused business from using its trade name. The court order can ask for monetary compensation in case the business owning the trade name has suffered losses due to the infringement. Conclusion Conclusively, trade name protection is provided to all business proprietors under trade name registration protection or common law. These two kinds of protection allow business owners to operate without fear of business trade names being infringed by others. Both laws also protect against any slander or potential profit loss by the prevailing business owner. As seen in the video, infringement of trade name is a grave offense. Despite the fact that some businesses may not be using trade names owned by others, for defamation, they are still considered to be acting in violation of trade name laws. Therefore, whether a business copies the trade name of another business willingly or unwillingly, the latter should face the law and forced to alter the name or be denied the right to operate. References Grant,J. Ashworth, X. & Charmasson,H. (2008). Patents, Registered Designs, Trade Marks and Copyright for Dummies. London: John Wiley & Sons.  Olson, Jr,R.W.(n.d) Safely Choose a Tradename for your business. Retrieved from:http://www.avvo.com/legal-guides/ugc/safely-choosing-a-tradename-for-your-business Tatum. A. (2010). Rally Round the Trade Name. Strayer University. Retrieved from http://www.scribd.com/doc/55421771/Rally-Round-the-Trade-Name Trade Name - Law, Business, Names, Businesses, Public, and Infringement. Retrieved from: http://law.jrank.org/pages/10843/Trade-Name.html#ixzz17vugW5qU  Read More