Custom Law of Ethics in the Business Environment essay paper sample
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A trade name is used for advertising a business to its clients and to the public. This implies that different trade names identify different businesses. The trade name of a business can be different from its constitutional name, so it can or cannot be uniquely and distinctively used to identify and characterize the business’ products and services. Most businesses in the US register their trade name with the administrators. This enables businesses to obtain a number used for tax purposes, and it is, in most cases, assigned by revenue services and security administration. Business names are crucial in enhancing the success of businesses. Legal requirements stipulate that a business that uses a business name first has the legal freedoms and rights on that name.
Does the fact that Gabby's surname is Rally give her a right to use it any way she wishes?
The fact that Gabby’s surname is Rally does not give her right to use it in any way she deems fit. The only right she has is to keep her own legal name. The commercial use of a name makes no difference whether an individual uses real or any other name. She does not have unlimited rights in using her surname in any way she wishes. She, therefore, is subject to trademark limitations, even if she may have filed the relevant documents to acquire registration authorization of her business as Rally’s Pizza.
She might be having the tax ids, proper permits and licenses, but these are limited, because within the same geographical location, there is another business with a similar name as Rally’s Motors. Rally Cars have been using the name Rally for over forty years and Gabby just recently opened; therefore, Gabby’s use of the name Rally in a commercial setup is an infringement on the intellectual property of Rally Cars (Delion & Delion, 2010).
Explain whether it matters that Rally is associated with pizza.
It does not matter whether Rally is associated with pizza; this is because the use of the name does not depend on the notion that people may confuse pizza with cars. The main thing is the name Rally, since two businesses in the same locality and same market can use the same trade name. This implies that Herman has the freedom to use Rally as a trade name. What legally matters is the use of the name for commercial activities and not the provision of similar or different products by businesses, for example, cars and pizza.
Halbert & Ingulli (2010) assert that Hay could prove that his business has been infringed upon because of the confusion that results from the use of the name Rally. Infringement occurs when confusion over products and services is caused due to similarity that exists between trademarks. The issue, therefore, is over the use of Rally as a trade name and not the goods and services provided by each of the two enterprises.
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 in this particular geographical area is extremely valuable. It is the deciding factor in this case. Herman has exclusive rights to use the name for commercial purposes. Trademark protection and intellectual property law reserve the exclusive use by the business that developed the law first. The most fundamental fact in disputes about trade names and trademark is the first use. Therefore, Rally motors maintain exclusive rights to use the name Rally based on common law, because it is the first to use that name in that particular geographical area.
The rights in a trade name
A trade name gives the business that uses it exclusive rights to build its product brands and to market the products exclusively. It provides the business with the freedom to use the name within the particular geographical location and the right to run and operate the business in a competitive environment. The unique trade name gives the business exclusive rights to do business by marketing its products without fear of any other business benefiting from its intellectual property’s investment, growth and development.
It avoids any possibility of the business succumbing to injury because of unfair competition. Since the business operates in a free-floating market, the trade name improves its operations. The use of the name Rally makes it unfair for Rally’s car, because Rally’s pizza will be benefiting from the name and brand he has built over the years.
Remedies if someone else infringes upon a trade name
The business that has been infringed upon is the entity that should be under pressure to protect its trade name. If another business has infringed upon the business using its name, it is challengeable in a court of law. This only applies nationally and not internationally. If it is a federally registered trade name, the infringer is bound to face more strict penalties. The threat of litigation can also help in prevention from capitalization on technologically protected patents, trademarks and trade secrets.