Trademark registration is the best way for your limited liability company (LLC) to protect the assets that define your brand identity. In this article, we will take a closer look at trademark protection, filing options, and the trademark application process.
What’s a Trademark?
A trademark is a name, symbol, or another item that you use to identify your business. You can trademark a logo, ad slogan, mascot, and a variety of other items that are unique to your brand. Some small business owners also file a trademark for their “doing business as” (DBA) name.
Trademarking is common among business owners as it offers specific legal protection that just having an LLC or a DBA does not. Trademarks can be filed at a state trademark office or the federal level. A federal trademark is managed by the United States Patent and Trademark Office (USPTO) and is generally the better option since federal registration provides national protection across state lines.
When you apply for trademark registration, you will have to be specific about your products and industry since a trademark only prevents businesses within that same space from using the same name, logo, etc. A trademark will not prevent companies outside of your industry from using comparable items. Obtaining a trademark does not give you exclusive rights to that object.
You might also come across the term “service mark.” The most important difference between the two is that a trademark is for products and a service mark is for services.
Why Would an LLC or DBA Seek a Trademark?
The main reason why an LLC or DBA would want a trademark is brand protection. Without a trademark, another company may pop up using a confusingly similar business name and logo in an attempt to confuse and lure away your existing customers. A trademark is a legal way to prevent this from happening.
You could also find yourself in a tough spot if you’ve branded your company and discovered that someone else has already trademarked your business name or logo. Since you did not trademark those items first, you’ll be stuck having to redo your website and anything else with your branding on it.
Lastly, a trademark is a good way to show potential investors that you are serious and have legal protections for your company’s brand. Some investors may even require you to file a trademark before investing in your LLC.
Requirements To Trademark
Filing a trademark does not necessarily mean that it will be approved. To improve your chances of successfully registering a federal trademark, be sure to review the following prerequisites. You should also consider speaking with a trademark attorney if you need additional help.
Be Eligible To Receive a Trademark
To qualify for registration, a trademark must be distinctive and in use.
Being distinctive means that whatever you want to trademark must distinguish your company from other businesses and be unique. There are a few categories that meet this requirement
- Fanciful – Fanciful trademarks are images or words that have no real meaning in common language.
- Arbitrary – Arbitrary trademarks are images or words that do have a common meaning, but that meaning does not typically apply to the products or services of the brand using it.
- Suggestive – Suggestive marks use images or words that hint at products or services that are being offered without actually describing them.
- Descriptive – Contrarily, descriptive marks describe the products or services being sold.
You might also see the term “generic trademark” in this space. They typically describe a brand name that has become the generic word for a type of product.
The second requirement when you register a trademark is that the mark is in use. This means that the mark is already being used and you may be asked to provide evidence by sharing which products have been sold with your desired mark on them. There is also an Intent to Use application if an item is not yet on the market but you are willing to make a formal statement that it will be.
Check the Availability of Your Trademark
If another company within your space already has a trademark that is similar to the one you want to register, you will not be allowed to do so. Fortunately, the USPTO has a helpful tool that you can use to search for similar trademarks before you file.
Know Which Type of Trademark You Need
When you register a trademark, you will have to choose between registering a standard character trademark or a color special form trademark.
A standard character trademark offers protections for the words or letters within an object with no consideration for design. This option offers more protections as the trademark does not only apply when the object is displayed in certain colors or sizes but does require you to meet guidelines for letters, marks, punctuation, etc. to qualify.
A color special form trademark allows you to protect any additional design elements within an item, such as unique lettering. If your desired mark includes specific colors, pictures, or other design elements, you will need to choose a special form trademark.
Understand Your Classification
As mentioned above, a trademark only protects your brand within the specific industry where you do business. You will need to match up the USPTO’s classifications to the products or services that you offer. Filing fees may differ depending on the classification that best suits your business. Remember that other businesses can use similar items if their products or services are not in the same class.
How To Trademark Your Business Name Step-By-Step
- Make sure you are eligible to receive a trademark
- Check to see if your trademark is already taken
- Choose either a standard character trademark or a special form trademark
- Classify your goods or services
- Create an account on the USPTO website
- Complete the trademark application form online
- Pay the appropriate fee
- Wait for a USPTO examing attorney to review your application
- Respond to USPTO examining attorney promptly
- Receive approval or denial of your trademark
Trademarking Your Business Name FAQs
Trademark vs. LLC: What's the Difference?
LLCs and trademarks are similar in that they both offer protections, but they do very different things and you can have both an LLC and a trademark. A business entity is a legal business structure that protects your assets from being jeopardized by separating them from your business. A trademark protects a business name, logo, or another element that distinguishes one brand from another. LLCs are filed at the state level, while trademark registrations can be at the state or federal level. Federally registered trademark protection often makes more sense as it will protect intellectual property across state lines.
DBA vs Trademark: What's the Difference?
A DBA allows your LLC to do business under a name that is different from its legal name, while a trademark distinguishes your business from other companies. You can trademark a DBA as long as it meets all requirements.
Copyright vs Trademark: What's the Difference?
Both trademarks and copyrights offer legal protection for intellectual property but protect different types of assets. A trademark is a unique branding asset, such as a name or logo, that a business uses to distinguish itself. Copyrights protect original works such as books, videos, and other artistic intellectual property.
Can an LLC Own a Trademark?
Yes, an LLC can own a trademark for a company name, logo, slogan, or any other elements that it uses to identify itself and stand out from other companies. Having a trademark does not give an LLC sole ownership or exclusive rights over that item, however, and businesses outside of the LLC's industry may still use similar branding elements.
Should I Get a Trademark or LLC First?
There is no right or wrong answer to this question, as it depends on your specific business needs. You might want to form an LLC first to protect your assets and then trademark your business name and logo to prevent others from using them. Or, you might trademark your business name first to ensure that no one else can use it, and then form an LLC to protect your assets. Ultimately, the decision is up to you and what makes the most sense for your business.
Does Registering Your Business Name With the State Grant Trademark Rights?
Generally speaking, an LLC registration, or any other business entity registration, at the state level does not give you trademark rights. Some common law trademark rights might offer protection and prevent local competitors from using similar names or logos, but you will need to register your trademark separately to ensure full protection. Filing a trademark at the federal level also gives you federal protection and prevents businesses located in other states from using your trademarks if those businesses are in your industry.
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