Businesses use a trademark, which is a word or words, a symbol, a device, or any combination thereof, to identify and distinguish their goods or services from others.

Business owners must apply for for a trademark. Federal law states that the marks on the same or similar products or services must be sufficiently different from each other.

There are two ways in which a company can acquire the rights to its name:

1. Obtain a federally-registered trademark. Under the Lanham Act of 1946, a company can register its name as a federally-registered trademark, thereby giving the company exclusive control over the mark of a product or service for a set period of time, usually 10 years, with 10-year renewal periods thereafter. Any use of the name by another party, which could be construed as "confusingly similar," is infringement.
2. Develop exclusive rights to a name under common law. In this situation, the right to a name develops through the earliest valid commercial use. This right exists in areas where the mark is identified with the owner, a territory referred to as a "zone of goodwill," where the owner has developed goodwill through advertising or "word of mouth" marketing.

Since trademark infringement can occur in various ways, an attorney can be retained to conduct a thorough search for previously-acquired "common law" and registered trademarks.

Business owners who plan to have a website should also consider registering their Internet domain name used for business. An attorney will know the steps needed to search the domain name registration records and to actually register the name on behalf of a client.

Failure to get a trademark could lead to a trademark infringement whereby the business receives a demand to discontinue using their name because another business already owns the rights to that name. For a company that has invested a great deal of money in promoting a brand or image, this could spell disaster.

Note: This information was prepared as a public service by the Illinois State Bar Association and is a joint project with the Illinois Press Association. Its purpose is to inform citizens of their legal rights and obligations.