Table of Contents
Written by : Santiago Bucklin
Current : 4932
Write a comment
Write a comment
hi everyone i'm attorney aiden durham with 180 law co in denver colorado and you're watching all up in your business on this episode of all opinion business we're going to talk about which comes first an llc or a trademark or in other words should you focus on getting a trademark before you start forming your business but before we get into it don't forget to like subscribe and share and hit that little bell button so you get notifications anytime i post a new video and don't forget to check the description for links to more information and resources you can download my free guide three tips for trademarking your brand and you can also get more information about my trademark services if you're looking for more help with getting a registered trademark for your business all right so it's probably no big secret that there are a lot of things that go into starting a business a lot of steps that need to be taken and you know a lot of to do's that need to be checked off and it can often be pretty confusing figuring out the proper order for doing all of that what do i do first do i worry about this or do i need to take care of this first lots of questions come up and a big one has to do with trademarks and whether you should focus on getting a registered trademark or applying for a trademark or if you should first start with actually forming the business because i work mostly with llcs and a lot of single member llc's i'm going to use llcs for these examples and talk about llc's but what i'm talking about really applies to any other kind of business entity not just specifically llcs so if we're talking about starting a business and we're going to operate as an llc the big question is do i form the llc first or do i file for the trademark first as with most things there's no one right answer um it always always depends on your situation your circumstances all of that um but generally speaking what i typically recommend is forming the business first getting the llc for formed first before you worry about filing the trademark application the reason for this is because the trademark is going to be owned by someone and normally we would want the llc to be the owner of the trademark because the llc is going to be the one using the trademark so let's say we file the application for the trademark first since the llc doesn't exist yet it can't be the applicant it can't be named as the owner of the trademark because it doesn't exist so in that case you as the individual or individual owners of um of the business would have to be the applicant and the owner and that's fine but if you are the owner of the trademark but then your business is going to be using it you would have to assign or transfer the trademark ownership to the business and you can't really do that while the trademark is in the application process once the trademark has been registered then it's fairly easy to transfer it from the owner to the llc um but you know it always again kind of depends on the situation so because of that that's really the main reason that we typically want to set the llc up first is so the llc exists so it can own the trademark now the little one exception that i make to this is usually with single member llc's if you're going to be the only owner um then it's not in the end it's not really a big deal if you are named as the owner of the trademark initially because then like i said once the trademark is registered you can assign or transfer that ownership to the llc um and that can be part of your member contribution to the llc is this intellectual property this trademark registration but the reason i say that specifically for single member llcs is because when there's more members more people involved it can potentially cause a problem later on if we're trying to transfer ownership or let's say there are multiple members and one of the members is named as the owner um if that member decides to you know pack up and leave or hit the road then it may not be easily possible to get that ex-member to transfer ownership of the trademark to the llc now or uh it is possible to have multiple owners of a trademark so if multiple members are the owners then it's just you know more that goes into having to make that assignment or that transfer because we're dealing with more people who have to uh agree to it now essentially so you know in the end overall it is best to start with forming the llc or getting the entity up and running and formed before you worry about filing a trademark application or pursuing trademark registration but but but the big the big thing with that is that just because we're not worrying about the trademark just yet doesn't mean we don't need to worry about the trademark just yet uh this is going to be especially important if the name of your llc is going to be the trademark is going to be the name or the brand that you're going to do business under something that often kind of gets people confused is um a business name or an llc name isn't the same as a trademark at all um you can have your llc be registered under some name and then your trademark can be something completely different you don't necessarily have to do business under the name of your llc you can use a trade name or a dba you can have different brands under an llc so if the llc name is what you're going to use as your trademark if that's going to be the trademark if that's going to be the the brand then you do want to at least do some preliminary kind of trademark clearance before you commit to a specific llc name because with llc registrations there's not going to be checks and balances like there are with trademark registrations where an examining attorney tells you you know this trademark is available and you know you can have the registration that doesn't happen with llc registration so just because you register uh the name under an llc doesn't mean that it's going to be available for you to register as a trademark so if you're in the process of setting up an llc and that llc name is what you are going to use as your trademark then at least you know do a good thorough google search uh get on the uspto's website they have the tess tess search database that you can do a pretty simple search of any registered or pending trademark applications at least get a good idea of if the name that you want to use for your llc and trademark is at least available best case scenario of course would be to have an attorney perform a full clearance search for you before you even worry about the trademark so that way we get the trademark done then we know we're in the clear for filing the trade i'm sorry we get the llc done and then we know we're in the clear for filing the trademark having said that though in the end let's say you file and form your llc and then you get around to thinking about the trademark and you find that that trademark's actually not available you won't be able to register that trademark for most states the process of amending your llc's name isn't very uh it's not very difficult it's not uh especially costly or time-consuming process so often worst case scenario if you do wan
Thanks for your comment Nicole Toddy, have a nice day.
- Santiago Bucklin, Staff Member
he Forks today we're going to be talking about trademarking and specifically trademark symbols it sounds like it's going to be a bit boring well you could be right there but this is important you should know about trademarking when it comes to your brand and your logo so let's make a star and let me take you through each of the three main symbols so the first is the TM symbol sometimes known as the common law mark the TM symbol is used to make people aware that you are claiming rights on your trademark unlike a registered trademark which we'll discuss later on in this video a common law trademark can be harder to protect and that's because there's no public record of when the trademark was first used next up is the SM symbol now this isn't as commonly used as the TM symbol but it stands for service mark so if your brand offers services such as banking or legal or even design services you should be using the SM mark the TM symbol is much more widely recognized though and so I would suggest that you use the TM symbol over and above the SM one next up is the R symbol unlike the previous two symbols the TM and the SM the R represents an officially registered trademark you may only use the R symbol if you have registered your brand or your logo with an official trademark body if you go ahead and use the R symbol with unofficially trademarking then you could run into claims of fraud where you knowingly or willingly attempt to deceive or mislead consumers or try to prevent another brand from registering a mark which is similar or the same as your own if you have the budget to do so I would always say go ahead and officially register your trademark so what about when it comes to actually using the symbols on your logo worship the goal well in the mean peep we'll put the logo in the upper right-hand corner next to the logo it can also go in the lower right-hand corner or it could go inline with your logo or brand name there is no right or wrong it can actually go anywhere around your logo but you do want to have it in a sort of an unobtrusive way if you know for a fact that when you're having your logo designed you will be officially registering it let your designer know because they'll then be able to take that into account when you're creating the logo design so that the TM or the registered trademark symbol will be more balanced in the design okay so a quick recap you don't have to be using the TM or SM symbols to make common law rights claims to your trademark when it comes to the registered trademark symbol that little R in a circle you must have an officially registered trademark to use it and lastly let your designer know if registering that trademark is something you intend to do because they'll then be able to take that into account when they're sketching conceptualizing and create the final little design by knowing in advance they'll be able to incorporate that little symbol into your logo to give an overall better balanced and visual look to the final design it's at this point I should stress that trademark law is very complex you should always seek the advice of a trademark lawyer who can take you through the process and make sure that nothing is missed you don't want to go ahead and register your trademark and make a mistake so that someone challenges it you end up losing so there you have it that's a little bit more information for you on trade marking symbols not the most exciting of topics I know but it is something that you should know when it comes to branding I hope you find this video useful if you have make sure you give the video a thumbs up please leave me a comment let me know if you've actually been through the trade marking process yourself if you haven't already so scrape to the channel and make sure you click on that little bear icon to be notified whenever I release a new video and until I see you next time stay creative folks [Applause]
Thanks Emil your participation is very much appreciated
- Santiago Bucklin
About the author
I've studied nutrition at Palo Alto University in Palo Alto and I am an expert in mathematical physics. I usually feel grateful. My previous job was exhibit designer I held this position for 26 years, I love talking about soapmaking and zumba. Huge fan of Amanda Seyfried I practice waterskiing and collect for sports cards.
Try Not to laugh !
Joke resides here...