1. Explain whether or not the fact that Gabby's surname is Rally gives her the right to use it any way she wishes.
Ans. The video portrays the conflict arising out of the use of a common word "Rally" by two different people, one for auto dealership and the other for pizza. Rally Motors is managed by Herman and Rally's Pizza is owned by Gabby. For sometime there were calls for orders of pizza at the showroom of Rally Motors. The owner of Rally Motors had decided to sue Gabby for these events. One day a woman enters the showroom and serves pizza to Tony, Shelly and Herman, the people who were present at the showroom at that time.
We come to know that the lady who entered the showroom and was distributing pizza has a surname Rally when she introduces herself as " I'm Gabby Rally, owner of Rally's Pizza,...."
While Gabby has the surname Rally, Herman confirmed that Rally is the name of his dealership.
They both had been using the word Rally for their business.
Gabby tried to justify herself in using the word "Rally" by her claims, " I've been named "Rally" for more than fifty years." On the other hand Herman declares that the dealership was named Rally Motors for forty years and that they had been spending three hundred thousand dollars a year on advertising the name.
Gabby's surname "Rally" doesn't give her the right to use it any way she wishes. She can use it to name her business product but that does not mean no body else can use the name "Rally" if it is not their surname and if it is Gabby's surname only.
"Rally" as a surname can be given the same protection as a trademark only if it has been used and advertised for a long time and has attained a secondary meaning( Tysver, SURNAMES). Gabby had been using the name Rally's Pizza for no longer time than Rally Motors and her surname had not obtained secondary meaning on being associated to her name or identity .
2. Explain whether or not it matters that Rally is associated with pizza.
Ans. The word "Rally" was first used by the auto dealership Rally Motors. To be the first one to use a trademark in a business guarantees a trademark protection to the owner in that particular area (Tysver,Trademark Law in the United States). Further as Herman states in the video, "Rally is the name of our dealership. Has been for forty years. We spend more than three hundred thousand dollars a year advertising that name.", it is evident that the presence of Rally Motors has been in that area for a reasonable amount of time and it has advertised its name all along therefore the auto dealership owned the trademark in that area.
As Rally got associated with pizza, it started creating confusion. The customers could not understand whether "Rally" was for Rally Motors or Rally's Pizza and sometimes the calls for pizza order got routed to the auto showroom. This confusion lead to a case trademark infringement (Halbert & Inguli (2010, p. 342).
Because Herman was the righteous owner of the trade name "Rally", he could very well sue Gabby or any other business owner if the same trade name was used. Gabby had used the trade name for pizza and it might not affect Herman's business but it caused confusion in the first place and the second disadvantage to Herman was that any other used car salesman could use the same trade name causing "dilution" of the reputation of Rally Motors (Halbert & Inguli (2010, p. 342).
Rally name can be associated with pizza and it can be associated with any product but it was through direct and indirect means causing harm to the owner of the trademark which is Rally Motors in our case.
3. Explain how important the fact is that Herman started to use the name Rally first in that particular geographical area.
Ans. It is evident from the video that Gabby tries to convince Herman to let her retain the name "Rally". But Herman doesn't get convinced by her arguments. Gabby pursues Herman, to an extent that that she asks him to change the name of his car dealership.
Herman totally disagrees to this very idea and nullifies all possibilities by saying, "I was here first." He strongly condemns the liberty Gabby was seeking in terms of using pre-owned trade name "Rally".
Herman had started using the name Rally first in that particular geographical area so it gave him the ownership of the trademark (Tysver,Trademark Law in the United States). No body else could use that name in that particular area.
Even if the trademark is not registered the law provides protection to the party which has used the name first. If the trademark is registered, the trademark is protected outside the geographical location as well (Tysver, Geographical Limitation Of Common Law Marks).
4. Explain what rights you have in your trade name.
Ans. The rights guaranteed to me when I have a trade name are:
- If I am the first one to use a specific trade name in a particular geographical area then the trademark can not be used by any other firm for any purpose in that area (Tysver, Geographical Limitation Of Common Law Marks).
Other benefits on registration are (Tysver, Benefits Of Federal Registration):
- If my trademark is registered within the federal law, the name is protected from any claim of ownership throughout the nation.
- The right to sue for infringement in federal courts.
- The ability to recover cost, damage and profits if an infringement occurs.
- The right to use ® which could discourage many infringers.
- My trademark can be searched easily and it lowers down the possibility of use by any third party.
- Ability to block the importation of infringed goods.
- The ability to recover attorney fees in infringement cases.
5. Explain what remedies you have if someone else infringes upon your trade name.
Ans. The federal trademark law, the Lenham Trademark Act (1946) protects a company's ownership rights of a trade name (Halbert & Inguli (2010, p. 342). I can file a case against the infringing body.
As it happened in case of Rally Motors, Herman was prepared to sue Gabby for using the word "Rally" for selling pizza. He was justified in reason and by law when he decides for such an action.
In the case a successful trademark infringement lawsuit, I being the plaintiff will be granted an injunction against any further infringement. Attorney fees will be available to me when I win the case. Likewise I would be able to recover the cost of damage caused or will get compensation for the harm done to my business.
Eventually at the end of the video, Gabby was convinced that her use of the word "Rally" was causing a lot of concerns and confusion for the owners and customers respectively so she decides to stop using the trade name. Further if Herman would have sued Gabby, she could not have been able pay for the expenses of the case and confront the lawyers, so she found it better to give up fighting with Herman.