Casinos In Las Vegas

Common law tradename infringement falls within a broader category of prohibited unfair competition. "At the heart of [cases alleging] trademark infringement ... are two questions: Has a protectable right been created? Has it been infringed?" beef & brew inc. v. BEEF & BREW, INC., 389 F.Supp. 179, 184 (D.Ore.1974). Our review focuses on these two issues.

Whether, and to what extent, a tradename is protectable depends on its distinctiveness and strength. [FN1] 1 J. McCarthy, Trademarks and Unfair Competition § § 11:1, 11:24 (2nd ed. 1984) (hereafter McCarthy). In this case, the lower court concluded:

FN1. One reason a distinctive tradename is protected, but a non-distinctive tradename is not, is that a distinctive tradename assumedly attains greater public recognition and awareness of the service it represents. As a result, the senior user is entitled to protection against others who attempt to usurp this recognition or otherwise confuse customers.

Plaintiffs have used the names "Mirage Motel/Mirage Hotel" for more than thirty-three (33) years as the tradename of their motel at 4613 Las Vegas Boulevard South, Las Vegas, Nevada, and have thereby established that name as their common law tradename. A.L.M.N. contends, however, that even though the Rosoffs used the name "Mirage Motel" for over thirty years, [FN2] a material issue of fact exists about whether this name is entitled to protection.