We are often asked by our clients if they can feel secure about building a brand around the name of their LLC. The rationale is that, since my name was available with the state where my LLC is registered, then the name itself must also be available. The short answer is that this is usually not true. To understand why, we have to look at the difference between an LLC Registration and a Trademark Registration.
What is and LLC Registration?
LLC registration is the process of legally forming a Limited Liability Company (LLC) by filing the necessary documents with at least one state government. This process typically involves filing articles of organization and paying a fee. Most states will require that your name be somewhat unique so as not to create confusion. Registering an LLC provides the company with limited liability protection for its owners, as well as establishing it as a separate legal entity from its owners; however, filing an LLC does not establish any particular rights to use the name from a marketing perspective. The reality is that your LLC, even though it was approved by at least one state, and was unique enough to be registered, is NOT A TRADEMARK.
What is a Trademark Registration?
A Trademark is a legally registered symbol, word, or phrase that identifies a particular company's products or services. It gives the owner the exclusive right to use the Trademark in connection with their goods or services in the category in which it was registered. Trademarks are registered by the US Patent and Trademark Office (USPTO) and must be unique to qualify. Once a Trademark is approved you may begin using either the ™ of the ® symbol in connection with your name.
As an example, it may be possible for you to register Coca-Cola, LLC in some state (although not very likely); however, you can be sure that the minute you start using that name for your energy drink, you will get a cease and desist order from a much larger company which owns the Trademark to the Coca-Cola® brand.
If you are considering building a brand around one of your LLCs it is recommended that you first seek help from a Trademark attorney who can do a search for your name in the correct category and tell you if you can feel secure to spend money building a brand. Securing a Trademark may be relatively inexpensive ($1,500), or it may be a massive undertaking, depending on the facts.
Can I use the name without a Trademark?
The short answer here is yes, you can. However, if you do just be aware that at some point in the future, if the Trademark holder of your name decides you are infringing then you may be forced to stop using your name.
By the same token, if you end up building a brand around a name in which you do not hold the Trademark, someone else may end up infringing on your brand and you may find it difficult to stop them.
"DBA" or Doing Business As
Also it is important to understand that you may use a DBA registration for a company so that you can use a name unrelated to the company to present yourself publicly. DBA's are simple to file and you can easily look up how to do that in the State you wish to file. However, filing a DBA also does NOT protect the name in any way. Basically the same considerations apply as discussed above and if you want to protect any name, including a DBA, you need to go through the Trademark process.
The Bottom Line
If you are going to invest your time and money in really building a brand, then I would not even consider it without securing a Trademark first. If, on the other hand, you are just putting up a website and creating some basic marketing material for a small scale branding effort, and you are unable or unwilling to get the Trademark, then you are free to do so with use your LLC name or by using a DBA. If you use the brand long enough you may even end up with some common law rights to the name, but just be ready to abandon the name altogether if the Trademark holder shows up.
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