The name of a limited liability company, or LLC, can be trademarked, provided no one has established a trademark of that name first. A trademark can assure no one uses the same or similar name to identify knockoff products or services that could be mistaken for those your company provides. While trademark and copyright are often confused and mistakenly used interchangeably, when it comes to protecting your name, a trademark is what you need.
Copyright vs. Trademark
A copyright protects original artistic or literary work, but copyright law does not specifically protect names, titles or phrases. A trademark, as defined by the U.S. Patent and Trademark Office, is a “word, phrase, symbol or design … that identifies and distinguishes the source of the goods” from one party or company from those supplied by others. It's the brand name of a product or the company that makes the product. A service mark carries the same definition, except it identifies the source of a service instead of a product. While technically different, the term trademark or mark can refer to either trademarks or service marks.
Registration Not Needed
Legitimate use of your business name in commerce can establish your rights to use it as a trademark. The mark needs to appear on goods, packaging or displays associated with goods sold by your company produces. If your LLC is a service company, the company name must be used or displayed in the sale or advertising of services.
Advantages of Registration
While not required, registration with the USPTO has distinct advantages. Registration provides notice to the public of your claim and is a “legal presumption” of your ownership to the mark. You can bring an action on trademark infringement in federal court if your LLC's name is a registered trademark, and can file the registration with U.S. Customs and Border protection to stop the import of foreign goods that infringe on the mark.
Already using the company name in commerce can be a basis for your application to register the name as a trademark. In fact, the Patent and Trademark Office states that most applicants follow this route. But its use must be a “bona fide” use of a trademark in the ordinary business of trade, and not simply a use to reserve rights to the mark. To file an application based on the name's current use, you need to include a sworn statement or declaration that you use the mark in commerce, and list the date you first used the mark anywhere, and the first date you used it in commerce. The Trademark Office includes a properly worded declaration in its standard application form.
Conduct a Search
Before filing the application, conduct a search of the Trademark's database for any other claims to your company's name. If you want to trademark a company name with a design element you need to do a search by a design code, which includes numbers assigned to types of images and graphic elements. The Trademark Electronic Search System database provides a manual that includes the design codes. Your search, however, doesn't guarantee approval by the Trademark Office.
Submitting the Application
You can fill out and submit the application online with the Trademark Electronic Application System or TEAS. Paper forms are available, but take longer to process. The Trademark Office states that you should receive a response to a trademark application within four months of its filing. But the office warns the total time for processing the application can be nearly a year and even several years. Your basis for filing and any legal issues that arise will determine the actual time. You can still still claim a trademark by using the initials TM or SM after your company's name, usually in small type. You can't use the “R” in a circle ® trademark notice until your registration application is approved. Application costs as of 2010 range from $275 online to $375 for paper filings. Other fees may apply.
Tom Chmielewski is a longtime journalist with experience in newspapers, magazines, books, e-books and the Internet. With his company TEC Publishing, he has published magazines and an award-winning multimedia e-book, "Celebration at the Sarayi." Chmielewski's design skills include expertise in Adobe Creative Suite's InDesign and Photoshop. He holds a Bachelor of Arts in English from Western Michigan University.