1

If I incorporate an LLC, and then someone federally registers a trademark with that name, would I be infringing on a trademark and have to change my name?

Or will they be unable to register the trademark if a company is using the name?


I ask because I keep hearing that I'm supposed to register the company before trademarking, but in my case, I think the trademark is more important. I still want to register the LLC first to make it the trademark owner, but I'm worried that someone will snag the trademark after I register the company. Will I still have protections if my LLC is registered and someone snags the trademark? Will I be able to use the trademarked name on products?

  • Trademark doesn't prevent all uses of a trademark by other parties. If the other company is doing something completely different, there's probably no conflict. – phoog Jul 15 '18 at 18:16
  • @phoog Which raises the question, if they snag the trademark with the intent of impersonating the company, could they do that? I keep hearing that it's more important to form the LLC first, and trademark later, but I wonder if I should trademark first. – pushkin Jul 15 '18 at 18:52
  • Impersonating the company is the very thing trademark protects against. I was trying to point out that if you're selling hamburgers, you are unlikely to stop someone selling spark plugs under the same name. This is a point that is lost on many posters here, unfortunately. – phoog Jul 15 '18 at 19:33
  • @phoog "Impersonating the company is the very thing trademark protects against." - sure my point is that if I set up a company, but do not trademark the name, someone could trademark my company name with malicious intent, right? So if I were expecting something like that to happen, it would be smart to trademark the name as soon as possible. Is that right? – pushkin Jul 15 '18 at 19:39
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If you form an LLC, and then someone later obtains a registered trademark in the same name, the registered trademark would be enforceable everywhere except in the markets and places where the LLC developed common law trademark rights prior to their registration.

Your LLC formation would also put a bump in the road in their trademark application.

You can, of course, do both, although it is unclear to me why you feel such urgency in the likelihood of an infringement, which suggests that there may be relevant facts that aren't revealed by your post.

  • I guess you mean like using a company name that is the same as a competitors product that isn't trademarked yet... Which would completely change the situation. – gnasher729 Jul 17 '18 at 10:51
  • @gnasher729 The concept "isn't trademarked yet" is somewhat problematic. Any product sold in commerce in association with a name has some trademark rights, unless another trademark has priority in the place in that market. – ohwilleke Jul 17 '18 at 17:24

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