Should I Get a Trademark or LLC First?

When you form a limited liability company (LLC) and officially register the name of your business, no other business in your state can use that name. In other states, however, businesses are free to use that same name. This can be problematic, particularly if you want to expand your business. 

The solution is to nationally trademark your name and protect your business across the entire United States. This guide explains how to get it done. 

LLC Formation or Trademarking the Name – Which Comes First?

A trademarked name must be legally owned by the person or entity using it. In the case of an LLC name, the LLC will be using the name, not you, the owner. This means that the trademark application must be made in a way that makes the LLC the trademark owner.

Thus, the LLC must already be registered with your state when you apply for the trademark. But it’s a good idea to trademark your business name as quickly as possible after LLC formation; the longer you wait, the greater the risk of somebody else registering the same name. 

You can form an LLC in as little as five minutes with ZenBusiness’s online LLC formation service. They will check that your business name is available before filing and filing your articles of organization.

If you apply for the trademark in your name rather than the LLC’s, you can assign the trademark to the LLC later, but that takes more time. On the other hand, if the trademark is in your name, but the LLC uses the trademarked name, you risk the trademark being voided, which would mean a much more significant delay. 

Make Sure the Name Is Available

To form your LLC and the trademark application, follow these steps to make sure the name is available.

1. After selecting your business name, the next step is to perform a business name search in your state. This allows you to ensure another business hasn’t already taken the name. It’s important not to skip this step because if you register a name already registered, your application will be rejected, and you’ll need to start the process again.
2. It’s also critical to do a thorough domain name search on a site like GoDaddy to ensure your preferred business name is available for your website. Using “.com or “.org” sharply increases credibility, so it’s best to focus on these. A domain name search will also tell you if another business uses your name in a different state. You’ll need to register your name in multiple states to expand your business. 
3. Next, you’ll need to ensure the name is not already trademarked. Then, check with the US Patent and Trademark Office (USPTO) to ensure the name is available nationally. 
4. Lastly, it’s helpful to do a Google search to confirm that no company outside the US is using your preferred business name or a similar one. If you discover a large, established foreign company with the same name, it might be wise to choose a different name. 

How to Apply for a Trademark

The application process is relatively straightforward.

1. Go to the USPTO website

The first step of the trademark application process is to visit the USPTO website. You’ll find an application form on their Trademark Electronic Application System (TEAS). 

You should be able to complete this application relatively quickly, but the trademarking process could take several months. 

2. Fill Out the Application

The application requires the name and contact information of the LLC filing to secure the trademark and personal details about you as the owner of the LLC.  

The trademark application also requires that you list the products and services the name will be used to sell. You need to be very detailed when you fill this part in, including describing the class the product or service falls into, which can be found on the USPTO site. 

The trademark application, of course, needs to include the name you are seeking to trademark. The simplest form of a trademark is the standard character mark, also known as a wordmark. 

This trademark includes only the business name’s words, letters, and numbers, without design elements or fonts. The other option is a design mark, also known as a logo trademark, which includes specifics about the design and layout of the business name, such as the font style and size, color, and logo. 

This allows for much greater specificity and ensures your company controls the name and the visual brand. But remember that if you register a design mark, the trademark will protect that specific depiction of the name. 

It will not protect your business from a company with a similar name and a different mark.

3. File The Application 

The trademark application can be filed with the TEAS system.

A trademark application filed with the USPTO will trigger an application to a federal government patent lawyer, who reviews the application and issues a response. If the lawyer determines problems with the application, they will issue a letter referred to as an “office action.”

Most trademark applicants have around six months to respond to issues specified in the office action. If you fail to respond within the designated time, your trademark application will expire, and you’ll have to start again. 

If the USPTO approves the application, it will publish your trademark in a web-based journal that provides public access to all trademarked names to prevent errors and duplicates.

In Closing

Forming your LLC in your state only protects your business name in your state, so if you plan to expand your business, trademarking is a good idea. It takes some time, but it’s well worth ensuring that your LLC name is fully protected. 

One day, your trademarked LLC name could become a household word!