Rally Round the Trade Name

Law, Ethics and Corporate Governance

3/02/12

Abstract

There will be a video analysis. One will explain whether or not the fact that Gabby’s

surname is Rally gives her the right to use it any way she wishes, explain whether or not it matters that Rally is associated with pizza, explain how important the fact is that Herman started to use the name Rally first in that particular geographical area, explain what rights you have in your trade name, and explain what remedies you have if someone else infringes upon your trade name.

1. 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 the name Rally any way she wishes because it is protected by trademark. Surnames are not given protection under trademark law until they receive secondary meaning through advertising or long use (Strength of Trademarks para. 12). Gabby does not have the right to use the name Rally because Rally Motors have been using the name for forty years. In other words, they have had long use of the name. The trademark law protects Rally Motors. A trademark is also intellectual property (What is Intellectual Property? Trademark para. 1). Gabby has a restaurant and Herman has a car dealership. Although they are two different types of places with the same name, Gabby may have still been subject to trademark infringement. One reason it could have caused trademark infringement was the fact that people were getting the pizzeria Gabby owned confused with Rally Motors. The use of a trademark in connection with the sale of a good constitutes infringement if it is likely to cause consumer confusion as to the source of those goods or as to the sponsorship or approval of such goods(Overview of Trademark Law para. 18). In order to serve as a trademark, a mark must be distinctive meaning the mark must be capable of identifying the source of a particular good(Overview of Trademark Law para. 5). In determining whether a mark is distinctive, the courts group marks into four categories based on the relationship between the mark and the underlying product (Overview of Trademark Law para.5). The categories are (1) arbitrary or fanciful (2) suggestive (3) descriptive or (4) generic (Overview of Law para.5). Gabby will need to get a trademark for her restaurant.

2. Explain whether or not it matters that Rally is associated with pizza.

Gabby could still be subject to infringement although it is associated with pizza. The reason

is because people are getting it confused with Rally Motors. Herman has used the name Rally for forty years. Herman mentions that they spend more than three hundred thousand dollars a year advertising that name. He mentions they can’t allow any other business to use their name. Gabby mentions about her pizza parlor doing great business. Herman mentions sure you are, because Rally sticks in people’s mind. He also mentions they advertise it everywhere.

When people think of Rally Motors, they can think of Rally pizza and vice versa. Some of the business that Rally Pizza gets could be tied in with the business that Rally Motors get. Rally Motors is different from a pizza parlor. Therefore, it may not matter that they have the same name. It may not be a problem for Rally pizza parlor to get business due to the advertisements of Rally Motors. There are several different situations where someone else could be infringing on trademark rights (Crash Course on Trademarks: The Protection Offered by Trademark Law para. 2). One could be using it to sell the same type of products or services, or to sell