Posted: September 3rd, 2013
Rally Round the Trade Name
Rally Round the Trade Name
It is clear that Gabby’s surname is Rally and that is the main reason that led her to use it as her business name. However, she does not have the right to use it in whatever she wants. When it comes to matters affecting other people, she has a responsibility of following the right procedures before she incorporates her name in these issues. She has the responsibility of analyzing how incorporating her surname will affect the rest of the community.
In this case, her surname had already been used by another business. Practically, people were mistaking the “Rally” car dealership and the “Rally” pizza restaurant. The car dealers were being called to deliver pizzas. There was a conflict of interest. In such a case, this conflict had to be resolved; otherwise, it was becoming inconveniencing. Gabby had no right of using her surname in her business just because the surname belonged to her. It was not right as it was bringing a conflict of interest in an existing business (Tilman, 2002).
People tend to associate “Rally” with pizza since pizzas are edibles and therefore they are consumed more than cars are. Most people are more likely to call in for a pizza delivery than they are to call in for a car delivery. However, Rally car dealership has been there for more than forty years. This means that it has built its brand and that it has formed its clientele using the name “Rally”. Unfortunately, registering a business with a particular name does not give one the right to own the business name (Kerly, Blanco & Jacob, 1986). From the incoming calls, the name “Rally” has been greatly associated with pizza. This matters as far as a trade name is concerned.
The Rally is used more by those ordering pizzas because pizzas are consumes more than cars are. The majority of the consumers tend to master the first word of a trade name and thus use it as a reference when intending to refer to the business. This is why the consumers dial the number to the car dealership instead of dialing the restaurant’s number.
Pizzas are fast-moving goods since they are cheap, edibles and perishable while cars are more expensive, non-perishable are not as part of basic needs as foods. This is why it may be perceived as though “Rally” is more associated with the pizza. However, the case may have been different if Herman’s business dealt with eatables such as drinks. Since Herman’s business may have been around for a longer period, it could have received as many calls as the pizza calls or even more calls. In other words, Rally may be more associated with the pizza because of the different natures of the businesses.
As indicated, Herman’s business was the first to use the business name. The business has been around for around fifty years and so it has built using its clientele in that geographical location using that particular name (Hopkins, 1924). In this case, it is significant to appreciate that Herman’s business has used the trade name for the longest time. On the other hand, it is significant to note that most people associate the trade name with the pizza.
Transactions, legal documents and all the other records over the many years have been used with name “Rally”. Many people, both young and old, associate Rally with the car dealership as they have grown up seeing the business. The main reason that popularizes the trade name “Rally” with the pizza is the nature of the pizza business. If Herman changed the business to another name, there would be more harm done as it would it would be a long process due to the years it has been established. On the other hand, Gabby can change her business name since her business is smaller than Herman’s and not as old as Herman’s business. It is easier to change the name of a child than changing the name of a fifty –year old man.
Like ones birth names, one has the right to their trade name. It does not matter that a man aged eighty-five years old is named Peter while another aged two is named the same. They both have the rights to the same name. Similarly, a business named “Smiths” started in 1975 does not give it more rights to the name than a business named the same started in 2009. However, similar business names can bring a conflict of interest.
Although it has been said that an older business cannot sue a younger business for using its name, the older business posses more rights to the name. This more defined if the two businesses are of a different nature. The older business has done many transactions and incorporated a lot of legal documentation using the trade name for a longer period than the latter business. Age is one way of gaining the rights to a business.
Additionally, a business, which has built its clientele and general business around the name of the business, gives it more rights to the trade name as compared to other businesses (Uspto, 2012). For example, the McDonalds Company has built its business around the trade name. Another fast food restaurant cannot open and trade with the same name.
It is evident that registering a business does not make one to have the exclusive rights to a business name. However, it is a way of ensuring that the rights are more defined as compared to a business that is not registered. Similarly, registering businesses allows one to avoid picking a name that is already picked by other people. Similarly, it also gives evidence as to the length and extent one has used the name. As earlier identified the length of time a trade name has been used can aide one in winning a case, if need arises.
The first remedy is to talk with the infringing party about the issue. Talks are more productive than lawsuits. It enables the two businesses to come to consensus that is acceptable to both parties, without the bad incidences and the experiences that are experienced in courtrooms. It also saves on time and money, which are greatly used when a party sues the other. These discussions can be made without the presence of a mediator.
In this case, Gabby can incorporate the name “Restaurant” (if not incorporated) and make it as distinct and conspicuous as possible, thus giving the consumers room for making out the difference between the two businesses when dialing the number on the directory. Similarly, Rally can make the name “Car Dealership” to be as distinct as possible.
In another approach, arbitration can be incorporated. This is a form of settling cases outside the court (Elias & Stim, 2011). This may include the use of a mediator or other means thus allowing room for negotiations. The method is not expensive, takes a lesser period and does not attract a lot of public attention like the court cases. This method allows the personal opinions of the parties unlike the court processes that required the use of a lawyer.
Suing is an option but it should be the last option. This is because it involves a lot of time, energy (both physical and emotional), is more expensive and it may cost the reputation of both of the businesses or either of the business. Settling the dispute in court allows a business to get a judgment that is concrete and can only be challenged by a higher court. Similarly, it reduces the cases of unfairness or decision ambiguity. Persons going against the decision made can be prosecuted and jailed. Settling issues in court should be the last approach. The best include having a one-on-one discussion or incorporating mediators.
Elias, N. & Stim, R. (2011). Trademark. Legal Care for your Business & Product Name. Berkeley, CA: Nolo.
Hopkins, J.L (1924). The law of trademarks, trade names and unfair competition, including trade secrets. New York, NY: The W. H. Anderson Company.
Kerly, D. M., Blanco, W. T. A., & Jacob, R. (1986). Kerly’s law of trade marks and trade names. London: Sweet & Maxwell.
Tillman, C. (2002). Trade Names. New York, NY: S.N.
United States Patents and Trademark Office (2012). 2173.05(u) Trademarks or Trade Names in a Claim – 2100 Patentability. Uspto.govv. Retrieved From http://www.uspto.gov/web/offices/pac/mpep/documents/2100_2173_05_u.htm
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