Intellectual Property of tradename - Research Paper Example

?Intellectual Property Intellectual Property A trade is simply a of a business or a of a business’ product which identifies the business or that product. Usually, the right to use a specified trade name is instituted by priority of adoption (Palfrey, 2011). Thus, a tradename belongs to the first person who used it within a given geographical area. The owner of a registered tradename has the legal right to seek a Court’s litigation in case of any infringement to their tradename so as to prevent any unauthorized use of the tradename. Conversely, an unregistered tradename may also receive legal protection basing on common law rights. The protection of such a name is however limited to the geographical area within which the tradename is used. Basing on these provisions, it is important to analyze the case involving Gabby and Herman with regards to the use of a similar name, Rally, for their pizza and car businesses respectively. 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 does not give her exclusive right to use it any way she wishes. Thus, for her to use the name as her trademark she has to consider several factors other than the fact that it is her own name. However, Gabby has the right to choose any name for her Pizza business as long as it does not infringe on another person’s trade name. Nonetheless, it should be noted that not every trade name that is similar to an existing trade name may result liability for infringement. In this regard, the law may not prohibit two unrelated businesses from using a similar trade name (McJohn, 2008). However, this may only be the case when the coexistence of the two trade names does not result to any risk of confusion among the public. Thus, this means that two unrelated businesses may be use a similar name as much as the above mentioned condition is upheld. For instance, Gabby operates a pizza business whereas Herman operates a car business. The two businesses are not related in any way. Therefore, on the premises of the fact that two unrelated businesses may use a similar name, Gabby may not be prohibited by the law to use the name her surname, Rally for her pizza business, notwithstanding the fact that Herman’s car business goes by a similar name. However, it is apparent that, her use for the name Rally causes confusion among the public. People end up making their pizza orders using the telephone numbers of Rally motors. This could therefore imply that, even though the name Rally is Gabby’s surname, its use jeopardizes Herman’s car business in one way or another. Thus, in this context, Gabby may not be allowed to use the name Rally in any way she may wish even though it is her surname. This is because the use of her surname for her business infringes Herman’s trade name which has already gained grip in the public domain. For instance, in the case of Google v. American Blind No. 02-05340(Apr. 18, 2007), the court challenged the legality of a program by Google known as AdWords which violated the trademark law by infringing of American Blind’s trademark accusing confusion in the users of search engines as a result (Leslie, 2010). 2. Explain whether or not it matters that Rally is associated with pizza. In the selection of a trade name, it does not always matter whether the trade name is related to the product in question of not. As mentioned earlier, what matters most if whether the name infringes on other established trade names or not. Also, if someone in the same geographical area started to use the trade name long before, matters a lot as well. Thus, as much as Rally is not related to Pizza, this may not act as a constraint towards the use of that name by Gabby. To avoid infringement of someone else’ trade name, it is important to choose a trade name should be distinctive. This therefore implies that the chosen trade name may not in anyway be related to the product being sold or the service provided. A thorough search for a trade name is an important aspect in the selection of a trade name. As much as Herman may not have registered his trademark, his enduring use of the name Rally gives him the legal right to use it exclusively. This is based on the premised that unregistered trade names which are used in the market place usually acquire common law right making it a trade name. This is because the use of the name makes it recognized by the public in any specific geographical area. Thus, whether or not Rally is related to Pizzas, is not a determining factor as to whether Gabby may adopt it as a trade name for her pizza business. The fact that Herman has used that name in that market place has made it become his trade name. Therefore, no one in that are is supposed to use the name Rally for whatsoever reason as a trademark. This means that by the use of the name Rally, Gabby is infringing in the trade name rights held by Herman. All in all, whether or not a Rally is associated to pizza or not, does not matter at all. 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 started to use the name Rally is very significant because it gives him exclusive common law rights to use it as a trade name in that area, whether registered or not. This is because the mention of the name Rally in that geographical place makes people aware of the Herman’s car business. The public has learnt to associate the name Rally with Herman’s car business. With the aim of maintaining a Cause of action as a result of trade name infringement, it is important for the plaintiff to establish that he/she owned the right to operate his/her business under the name in question. Thus, the right to use a trade name is usually established through priority of adoption. A business may acquire the rights to use a trade name by being the first one to present an application for the protection of the name. If the trade name is not registered, the business may be awarded rights to use a trade name though public use. This implies that the law provides protection if the business establishes that the business and the trade name are intricately interlinked and may not be separated in the public domain. Regular and continued public use of a business name also provides legal rights of a business to use a given trade name. Thus, on this ground, it is apparent that the fact that Herman was the first to use the name Rally in that geographical area, has used the for quite a while, and has advertised it so much that the public associates the name Rally with his car business, gives Herman the legal protection to use the name Rally. 4. Explain what rights you have in your trade name. The Lanham Act does not provide for registration of trade names unless they are functioning as trademarks. Even so, many states in the United States allow for registration of trade names. Such registered trade names are given protection under state law. This gives the user of a trade name various rights. Thus, a trade name is associated with various rights. For instance, a trade name gives you the right to exclusively use a trade name. This prevents others from using a similar trade name. A trade name also give you protection for the economic, intellectual as well as the creative investments that were incurred by the business in the ultimate protection process of distinguishing the trade by the trade name. Also, a person with a trade name receives legal protection to preserve the reputation established by the business and the goodwill created as a result of the use of that particular trade name. Furthermore, a person or a business with a distinct trade name receives legal protection to enhance market stability through a good rapport established by the use of the trade name. A person with a trade name has the right to involve in fair competition as the value and quality of the goods and services is usually associated with a particular trade name, thus, a business which has goods of high quality associated with its name gains the exclusive competitive advantage. This may not be infringed upon by competitor due to the legal right bestowed in a given trade name. 5. Explain what remedies you have if someone else infringes upon your trade name. Infringement of a trade name carries various remedies. According to Maskus (2000), the two common remedies are injunction and damages. Injunction refers to a court order aimed at halting or stopping the further production and sale of goods and services that are infringing others due to a trade name. There are instances where the court’s injunction order may be accompanied by corrective advertisement. This is aimed compelling the defendant to carry out an advertisement geared towards reversing the damage caused to the plaintiff’s trade name. Another remedy for infringing someone’s trade name is damages. This refers to a court order to awarded damage for infringement of a trademark. Kenneth and Clarkson (2010), assert that damages are established by computing the value of the defendant’s profits, the actual damages that the plaintiff may have sustained plus the cost involved in bringing the lawsuit, also known as the cost of the action. With regards to the damages sustained by the plaintiff, the court determines the actual amounts of damages based on the information proven by the plaintiff. The sum determined by the court may either be the actual amount or any sum that is above that amount but not exceeding more than three times above the actual amount of damages. With regards to the cost of action, the court may consider to pass the fee charged by the attorney in the lawsuit to the losing party. This is however done in exceptional instances. In some instances, damages are trebled. As stated by the Lanham Act, in case of a counterfeit name, mark or designation, the court has to impose damages which amount to three times the actual amount or three times the profits lost as result of the infringement (Poltorak & Lerner, 2011). In this case, whichever amount that is greater is considered. Prejudgment interest and statutory damages are also some of the remedies with regards to damages. Thus, on the basis of the above discussion, it can be concluded that, the choice of a tradename should be done with much care so as to avoid infringing on someone’s tradename. The fact that a given name is your surname, many not be enough to give you the legal right to use it in any way you like. In addition, it does not matter whether the name you choose is elated to your business. Any person may use any name for any business, as ling as its use does not amount to infringement of another person’s tradename. Thus, the owner of tradename is entitled to various rights. They include legal protection to prevent infringement of the name among many others. Any person, whose tradename has been infringed by another, is entitled to various remedies. These may include injunction and damages. References Chessman, H (2009). Business Law, 7th Ed, Jossey- Bass, New York. . Emerson, W (2009).Business Law (Barron’s Business Law), Barons Educational Series, New York. Kenneth, W, & Clarkson, F (2010). Business Law: Text and cases-Legal, Ethical, Global, and Corporate Environment, Cenage Learning, New York. Leslie, C. R. (2010). Antitrust law and intellectual property rights: Cases and materials. (1 ed.,). Oxford: Oxford University Press. Maskus, K. E. (2000). Intellectual property rights in the global economy. Washington DC: Institute for International Economics McJohn, S. M. (2008). Intellectual property: Examples & explanations. New York: Wolters Kluwer Law & Business. Miller, R.L & Frank, B (2008). Business Law: Text and Cases (West’s Business Law). South – Western College, New York. Palfrey, J. (2011). Intellectual property strategy. (pp. 35-37). Cambridge: The MIT Press. Poltorak, A. I., & Lerner, P. (2011). Essentials of intellectual property: Law, economics, and strategy.New Jersey: Wiley. Read More