Rally Round the 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.
I believe that Gabby has the right to use her surname “Rally” in her pizza business because it’s a different business and is not harming the Rally motor business As long as it’s a different type of business, then Gabby can use the last name “Rally.” Now, if Gabby wants to open up an auto business, she cannot use Rally as the name of the business because it will be confliction with the already existing business. A name or a trademark is what differentiates a business from any other business. Each business name must be unique according to its form or type of business. Just like two corporations cannot have the same name within a state, two auto businesses in the same town cannot have the same name. Gabby cannot use her last name in any way she wishes to. If there already exists a business named “Gabby’s Auto’s” she cannot open another auto shop with that same name. If she were to be allowed to do so, confusion will be created amongst consumers. It would be unclear to which “Gabby’s Autos” one is referring to so she would have to change the name of her business to something else, something more distinguishing that would avoid any kind of confusion. Just because her last name is Rally, it doesn’t give her the right to use it as she pleases. If this were the case, millions of businesses would have the same name worldwide and there would be lots of confusion.

2) Explain whether or not it matters that Rally is associated with pizza.
It does not matter that Rally is associated with pizza. If two different types of businesses share the same name, or even if it’s similar, it can be considered as confusing. If the name “Rally” was associated with another business before it was associated with pizza, then the person who first used the trade name has the exclusive right to utilize the name however he/she pleases. If someone else comes along and uses that trade name and in return creates confusion for the first user of the trade name, the first user can seek protection and will receive protection if they are able to prove that they were the ones who used the trade name first. They would also have to prove that the use of the name by another party is creating confusion for their business. Unless Rally is a franchise name, then the person who plans on using that franchised name can seek for protection and force the existing business to change their name because they are using a trade name that is registered by a franchised corporation.

3) Explain how important the fact is that Herman started to use the name Rally first in that particular geographical area.
The fact that Herman began using the name 40 years ago protects him under common law, trade name protection by registration and he used the name first in the area. Herman is protected under each of the laws mentioned above.. Common law states that whoever uses the name first in a certain region and for a specific business, that person will be protected. Also, by registering a trade name with the United States Patent Office or with the county recorder, one protects the trade name of their business. The law also states that nobody in the area in which the trade name was registered can use the name after the date of registration. If Herman had never registered his name, he would still be protected under common law but only because he used the name ³Rally´ first. But if he had registered his name, then he would automatically protected by the trade name protection.

4) Explain what rights you have in your trade name.
There are many rights that business owners have once they establish their trade name. They have the exclusive right to use their trade name in the area they registered in without being in competition with any other business that wants to use the exact same name and do the same type of business. They have the ability to market and promote their business and expand their business in zones of reputation, expansion, and marketing. After the trade name is registered, no other business can use that same name intentionally or unintentionally in the same category. In the event of this happening, the victimized business can look for support from the law to prevent from other business to use their registered trade name. Once you have registered the trade name for your business, no other individual can use that name to promote and operate their business. If your trade name is used by someone else, you can seek for protection from state and federal levels. In some cases, state levels may not be able to provide you with protection. And in those cases, one may be forced to seek for help and protection from the federal level.

5. Explain what remedies you have if someone else infringes upon your trade name.
If someone else infringes upon your trade name, one can seek relief and protection at the state and federal level. However, for an individual to see relief and protection, they must fall under one of the categories that can protect them from trade name infringement. Both federal and state laws protect against tradename infringement. At the federal level, trade names are protected by the Lanham Trademark Act and at the state level trade names are protected by property statutes and common law doctrines. Individuals that are looking to protect their businesses after trade name infringement can seek a court order to prevent any other business or individual from using their registered trade name. Individuals can also seek for monetary compensation for any losses the business incurred from the trade name infringement. They can claim compensation for loss of business due to the confusion created by the trade name infringement. For example, if a person wants to call Rally’s Pizza to order a pizza, and there exists a Rally’s auto. The customer might accidentally keep calling Rally’s auto to order a pizza and they may never get their pizza if the person who answers the phone call does not inform them that they have the wrong number. If Rally’s pizza was the first user of the name “Rally”, they can seek for monetary compensation from Rally’s auto because of the loss they have incurred due to the confusion created because of the similarity of their business’s name.