Rally Round the Trade Name - Assignment Example

 RALLY ROUND THE TRADE NAME A business name is a name that identifies a company or a business. The legal registration application can sometimes be different from the trade name. Trade name infringement is a violation of exclusive rights which belong to a registered company or organization. This violation is a critical offense to owners of businesses, especially the successful ones. This is due to the fact that they have spent a lot of money in creating a strong image in order to attract customers. If another company uses the same name it is bound to steer conflict between the companies (Rally round the trade name, 2011). In the clip there is a serious trade infringement as there are two business using one name, Rally. This is an analysis of the film. Here on, I will analyze various aspects, which deal with the protection to trade names and trade marks. This report seeks to give a clear summary on what exactly name infringement is, what condition it matters and how one can go about stopping an infringement. The main characters in this case are Rally and Herman. Rally feels that Herman infringed his business because although his name is Herman he uses Rally as his business name. Rally fails to have solid grounds to sue because Herman established his business name first in this area of jurisdiction and hence he cannot be sued for it (Rally round the trade name, 2010). 1. Explain whether or not the fact that Gabby’s surname is Rally gives her the right to use it any way she wishes. In life, one has a right to use whatsoever name he or she decides as a business name especially when that name is your real name. In the movie Gabby has a right to use her surname, but in her case the usage of her surname Rally is legal. For this reason she is under the obligation to make sure that by using her last name she does not stir a conflict with an already existing company that uses the name. If within the same geographical area the company with the same name exists and uses it as its trade name or the name is part of a trading name, then serious consequences are likely to be faced. The law of the land permits bona fide usage of the surname only for the trade name. If an unregistered company is running in the same geographical area and it is using the same trade name, Gabby will still be a victim of infringement of the trade name. Thus, she must take great care while using her surname as her company trade name. In commerce, it is of less concern or does not make any difference whether one is using his or her real name or whatsoever name. The issue will be if one is infringing on a business name of somebody else. Therefore, Gabby must register it first to use her surname as her trademark or trade name (Rally round the trade name, 2010). 2. Explain whether or not it matters that Rally is associated with pizza. Surely it does matter, since most of the people in the area used to Rally Motors and not to Rally pizza. This will cause confusion to the consumers. Although the two firms differ wholly in terms of what goods and services they sell, they have one thing in common: the trade name Rally. The owner of Rally Motors, Mr. Herman uses the name Rally exclusively as a trading name, and he spends about $300000 every year for advertisement of the name. For this reason Herman wants things to remain the way they are and the name Rally for his cars. The common law allows a business or company which uses a particular trade name first, in a given geographical area to have exclusive rights in the usage of the name, and the intended purposes. This protects Rally motors in case of losses which might arise as a result of damaged image or consumer conflicts. These damages could come from confusion as we saw in the video where customers were calling Rally Motors to place their delivery orders for pizza (Amanda, 2002). 3. Explain how important the fact is that Herman started to use the name Rally first in that particular geographical area. Under the common law of the land, Herman is safe since he was the first one to use the name in the geographical area, some forty years ago. His protection is by registration of business name. Herman is protected under all of these laws. Common law states that who first uses the name, in a given specific geographical area and for a specific or determined purpose protection will be offered. Furthermore, registration of a name as a trading name with the United States patent office or the recorder of the county protects the trade name from any other business owner. Additionally it declares that the trade name can not be used by any other company or business in the jurisdiction where the name after registration dates (Amanda, 2002). In case Herman had not registered the trade name Rally, the law would still protect him as he was the first one to use the name. 4. Explain what rights you have in your trade name When a company has its own trade name, it gets several rights and advantages. The company has the right to market itself in preferential geographic areas where the ability for expansion is greater, and so is the market target. When the name has been registered, no other business can register it, either intentionally or not, because this can be stopped by a court injunctive (James, 2004). The name also prevents other businesses selling the same product or using the same name in your area of jurisdiction. The name is exclusive to its pioneers alone. 5. Explain what remedies you have if someone else infringes upon your trade name Infringement of one's business name is a crime that can be charged both in a state and at federal level. In federal law, the name infringement law is contained in Lehman trademark act, but in state law it is protected by common law and property statutes and doctrines. If a business infringes, the affected business can sue and ask for monetary compensation in a court for all the losses incurred after using this name (James, 2004). Conclusion Herman is protected by the common law that states that the first who registers a trading name is able not to change it. Herman hence cannot be charged with infringement or anything at all in a court. So it was particularly much beneficial for Herman to register Rally’s name first in that area of jurisdiction. It does not matter that he did not register his name first because under the common law, he would still be protected. In summary, business name protection is available to all owners of business who fall under either the protection of common law or protection by trade name registration. In both of the cases business owners can operate freely with the knowledge that the law will not allow any other company or business to run with a similar name in the same specific geographical area. The law also protects potential profit loss and slander. As portrayed in the video, infringement of trade name is a very serious offense, although many business owners do not commit it intentionally. They stand to face possible law suits. References James, M. (2004).American politics after September 11., New York: Atomic Dog Pub Amanda, M. (2002), A practical guide to trade mark law. London: Sweet & Maxwell. Rally round the trade name. (2010). Retrieved from: http://www.swlearning.com/blaw/wdvl/wdvl/student/dr/dr_03.html Read More