LEG500 Assignment 5

Assignment #5 – Rally Round the Trade Name

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. There are no laws that state that a person has any right to a trade name purely based on the fact that it’s the person’s last name. In commerce, it makes no difference whether a person is using his or her real name—or any other name, for that matter. The issue is whether a person is infringing on someone's trade name. Trade name rights can be obtained either by: (a) common law, or (b) trade name registration (Beckman, 2009). Common law states that the person who first uses the trade name, in a specific geographical region for a specific business purpose has the exclusive rights to that trade name in that area for that purpose. Rights to a trade name can also be granted by being the first to register the name with the United States Patent and Trademark Office (USPTO) or with the respective secretary of state. This type of registration bars anyone from using the registered trade name in the registering agency's jurisdiction after the date of registration. In this case, if the business name Rally is already legally acquired or registered as a trade name under common law or federal law by Rally Motors, then Gabby cannot use it as her business name. Infringing upon the trade name of another is unlawful and punishable, even if the trade name is the actual surname of an individual. Therefore, Gabby must be very careful while using her surname as a trade name for her company.