A domain registration and an LLC filing give your business name a kind of legal existence — but neither protects you from someone else using the same name in your industry. Only a registered trademark does that. Understanding how the process works before you get attached to a name can save you from one of the most expensive mistakes a founder makes: building a brand on a name you don't own.
What a trademark actually protects
A trademark is a right to use a name (or logo, or slogan) to identify the source of specific goods or services. It's not a blanket ownership of a word. "Apple" is trademarked for consumer electronics — but not for apple orchards, not for the record label (which has its own separate trademark), and not in every industry globally.
This means two things practically: First, you may be able to trademark a name that already exists in an unrelated industry. Second, your trademark only protects you in the categories you register — operating outside those classes leaves you exposed. When you file, you select "Nice Classification" classes (numbered categories covering everything from clothing to software to food). The classes you choose define the scope of your protection.
Before you file: the clearance search
Filing without a clearance search is one of the most common and expensive mistakes in trademark law. The USPTO (US Patent and Trademark Office) will reject your application if there's a "likelihood of confusion" with an existing registered trademark — and "likelihood of confusion" is a broader standard than "identical name." A similar name in the same industry can be grounds for rejection or opposition.
Before you file, run your candidate name through:
- USPTO TESS (Trademark Electronic Search System) — the official US database. Search both exact matches and phonetically similar variations.
- EUIPO eSearch — if you plan to operate in the EU.
- WIPO Global Brand Database — for international coverage.
- Common law uses. A name used in commerce but never registered can still block your application if the prior user has established priority in the market. Google searches and industry databases matter here.
If you find a potential conflict, talk to a trademark attorney before proceeding. The cost of a consultation is far lower than the cost of a rejected application or, worse, a cease-and-desist after you've built a brand on a conflicting name.
Filing your application
In the US, you file through the USPTO's TEAS (Trademark Electronic Application System). There are two main application types:
- TEAS Plus. Lower filing fee per class ($250 as of 2024), but requires stricter compliance — you must use USPTO-approved goods/services descriptions and can't amend the application as freely. Best for straightforward applications.
- TEAS Standard. Higher fee ($350 per class), but gives you more flexibility to describe your goods/services in your own language. Better if your business category is unusual or hard to fit into standard descriptions.
You'll also need to declare the basis for your application: either "use in commerce" (you're already actively using the name in the US) or "intent to use" (you plan to use it). Intent to use gives you a filing date priority even before you've launched — valuable if you're still building and want to lock in the name.
What happens after you file
The USPTO assigns your application to an examining attorney, typically within three to four months of filing. The examining attorney reviews for:
- Likelihood of confusion with existing trademarks
- Descriptiveness (generic or merely descriptive terms are harder to register)
- Technical requirements of the application
If there are issues, you'll receive an Office Action — a formal letter requiring a response. You have three months to respond (extendable to six for a fee). If the examining attorney approves the application, it's published in the Official Gazette for 30 days, during which third parties can oppose it.
If no opposition is filed, a "use in commerce" application proceeds to registration. An "intent to use" application issues a Notice of Allowance, giving you six months (extendable up to three years) to begin using the mark and submit proof.
Common reasons applications fail
Understanding why applications get rejected helps you choose a name that's more likely to succeed:
- Mere descriptiveness. A name that directly describes a feature or characteristic of your product ("Fast Delivery," "Fresh Coffee") can't be trademarked without proving secondary meaning — years of exclusive use that taught consumers to associate the term with your brand specifically.
- Primarily geographic. Names that are mainly a geographic location face similar hurdles, unless the geographic term has acquired a secondary brand meaning.
- Likelihood of confusion. The most common rejection reason. Similarity is judged on appearance, sound, and meaning — "Brex" and "Brix" in the same industry could be considered confusingly similar.
- Ornamental use. For clothing brands specifically: a phrase that functions purely as decoration (a slogan on a shirt) rather than a brand identifier may not qualify for registration.
Maintaining your trademark
A US trademark registration doesn't last forever automatically. You must file:
- A Section 8 Declaration between years five and six, confirming continued use
- A Section 9 Renewal every ten years
Missing these deadlines cancels your registration. Set calendar reminders well in advance — trademark attorneys typically recommend filing at least six months before the deadline.
Choosing a name that's trademarkable from the start is far easier than trying to trademark a problematic one later. Use our startup name generator to explore distinctive, ownable names — the kind that make trademark examiners' lives easier and yours more secure.
