1. Explain whether or not the fact that Gabby’s surname is Rally gives her the right to use it any way she wishes.
The fact that Gabby’s surname is Rally, doesn’t give her the right to use the name any way she wishes, especially in commerce. In this case, the name Rally is registered for Rally Motors and protected under the trademark law. Using the name Rally for Gabby’s pizzeria is an infringement of the trademark law.
Trademarks are an intellectual property that grants the exclusive rights to the owner and governed by state and federal law in the U.S. In order to serve as a trademark, a mark must meet one of the requirements as follow:
• Arbitrary or fanciful mark
Mark has to bear no ...view middle of the document...
According to the U.S. Code, “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 the sponsorship or approval of such goods” (Harvard Law, n.d., para. 7). The factors that affect the consumer confusion included; the strength of the mark, the proximity of the goods, the similarity of the marks, evidence of actual confusion, the similarity of marketing channels used, the degree of caution exercised by the typical purchaser, and the defendant’s intent (Harvard Law, n.d.).
As stated by the Rally Motors employee, Shelly, the dealership gets all sorts of calls for pizza and that people are confused about the names. This proves the infringement and dilution of the Rally Motors trademark by Rally Pizza.
3. Explain how important the fact is that Herman started to use the name Rally first in that particular geographical area.
It is important that Herman started to use the name Rally first in the particular geographical area. In this case, Herman’s auto dealership has been using Rally as it trademark far before the Rally Pizza exists. Therefore, Herman owns the trademark protection for the name Rally. The fact that Gabby’s surname is Rally doesn’t make her automatically own the right to name her business entity Rally.
According to the U.S. Code, trademark can be acquired in one of two ways:
(1) by being the first to use the mark in commerce; or
(2) by being the first to register the mark with the U.S. Patent and Trademark Office ("PTO") (Harvard Law, n.d.).
4. Explain what rights you have in your trade name.
Assuming that the qualify trade name has acquired its secondary meaning, as required in descriptive marks, the trade name is entitled to trademark protection. Another way to earn...