The right of publicity is a legal theory that enables individuals to protect themselves from
unauthorized, commercial appropriations of their personas. The right of privacy is regarded as
the predicate for actions based on hurt feelings (1). On the other hand, organizations have the
right to use any name that they might register as a trademark.
For example if another business has register trademark for the name “Rally” the use of that name “Rally” or similar for another business could infringe those trademark rights(2). Actually, property in the form of a person's name, face or identity should be free for others to use according to First Admmend and the freedom of speech interests. Although in business, before enter in any market people should undertake trademark clearance searches to check whether you can use that name.
The fact is that when the right of publicity shifted to a property-based theory, it became disconnected from its original theoretical justifications. By dehumanizing the appropriation tort, the application of the right of publicity to invasion of personal privacy principles was rendered irrelevant simply because they are entitled to them now.
Companies spend a considerable portion of their budge to build and manage a brand in order to achieve consumer brand awareness and associations with their product or service. The U.S. federal law (Lanham Act, 15 U.S.C. § 1127)(3) defines trademark as “any word, name, symbol or device, or combination thereof, adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others.”
In trademark it does not matter if the same name is associated with pizza or other product or service, if the name has been register as a trademark any other use is trademark infringement that can be suit.
According to U. S. TRADEMARK LAW, Lanham Act, 15 U.S.C(5) trademark
qualifies for protection and rights by two ways: being the first to use the mark in commerce;
or by being the first to register the mark with the U.S. Patent and Trademark Office. The use
of a mark generally means the actual sale of a product or the service provided to the public
with the mark attached. This priority is limited, however, to the geographic area.
In order to have the right to use the mark nationwide would be necessary to register
the mark with the PTO(6) with a bona fide intention to use the mark in commerce. However
this right is limited to the extent that the mark is already being used by others within a
specific geographic area.
Halbert, T., & Ingulli, E. (2009). Law & ethics in the business environment: 2010 custom
edition (6th ed.). Mason, OH: South-Western Cengage Learning.(pg. 162)\
Kwall, Roberta Rosenthal (2009). DIGNITY; RIGHT of publicity; INJUNCTIONS;
EQUAL rights amendments; URBAN impact analysis; DISCOURSE analysis;
PERSONA (Psychoanalysis); SOCIAL aspects. Boston College Law Review,
Nov2009, Vol. 50 Issue 5, p1345-1371, 27p
Citizen Media Law Project. Using the Name or Likeness of Another. Retrieved from:
Krasnikov, Alexander; Mishra, Saurabh; Orozco, David (2009). BRANDING
(Marketing); TRADEMARKS; RESEARCH; FINANCIAL performance;
CONSUMERS -- Attitudes; BRAND identification; RATE of return; CASH flow;
ECONOMIC development -- Mathematical models; BRAND equity; RETURN on
assets; MULTILEVEL models (Statistics); LONGITUDINAL method. Journal of
Marketing, Nov2009, Vol. 73 Issue 6, p154-166, 13p, 4 Charts; DOI:
U. S. TRADEMARK LAW, Lanham Act, 15 U.S.C. Retrieved from: