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  • Writer's picturePeter Lamont, Esq.

The Business Launch Dilemma: Which comes first,LLC or Trademark?

For many entrepreneurs, starting a business involves many decisions, from choosing the right business structure to protecting their brand. Two critical aspects of this process are forming a Limited Liability Company (LLC) and registering a trademark. This article aims to provide a comprehensive answer to the question: "Which comes first, starting an LLC or filing the trademark?" By examining each approach's benefits and potential drawbacks, we hope to guide you in making an informed decision for your business.

Law Offices of Peter J. Lamont | NJ Trademark Attorneys
Which comes first,LLC or Trademark?

The Business Launch Dilemma:Which comes first,LLC or Trademark?

Before we delve into setting up an LLC or registering a trademark, let's look at these two concepts.

  1. Limited Liability Company (LLC): An LLC is a flexible business structure combining corporate and partnership elements. It provides limited liability protection to its owners (members) and allows for more straightforward tax treatment. This means the members' personal assets are protected from the company's liabilities, and any profits or losses pass through to the member's income tax returns.

  2. Trademark: A trademark is a distinctive word, phrase, symbol, or design that identifies and distinguishes the source of goods or services. Registering a trademark with the United States Patent and Trademark Office (USPTO) grants the owner exclusive rights to use the mark and take legal action against those who infringe upon it.

Starting an LLC First: Advantages and Disadvantages

Choosing to form an LLC before registering a trademark can offer several benefits:

  1. Protection of Personal Assets: By forming an LLC, you separate your personal assets from your business liabilities. This protects your personal assets in case of business debts or legal claims.

  2. Business Credibility: Establishing an LLC can lend credibility to your business, making it more attractive to potential investors, partners, and customers.

  3. Simplified Tax Structure: An LLC offers a pass-through tax structure, which can be advantageous for small businesses by avoiding double taxation.

However, one potential drawback to consider is that delaying the trademark registration process can put you at risk of losing the exclusive rights to your brand name or logo if someone else registers a similar or identical mark before you.


Filing a Trademark First: Advantages and Disadvantages

Registering a trademark before forming an LLC also has its merits:

  1. Brand Protection: Filing a trademark application early can secure your brand and help prevent competitors from using similar marks, potentially saving you time and money in the long run.

  2. Nationwide Priority: A federal trademark registration provides nationwide priority, ensuring your brand's protection across the United States.

However, there are some disadvantages to this approach:

  1. Legal Complexity: If you file a trademark before forming an LLC, you will need to transfer the ownership of the trademark to the LLC later, which may involve additional legal work and fees.

  2. Lack of Liability Protection: Filing a trademark first does not provide limited liability protection, which means your personal assets remain exposed to business liabilities.

In my opinion, it makes the most sense to form the LLC first and then file the trademark application.

The Ideal Sequence: A Balanced Approach

While there is no one-size-fits-all answer to whether to start an LLC or file a trademark first, the ideal sequence depends on your business's specific needs and goals. A balanced approach may involve taking the following steps:

  1. Preliminary Trademark Search: Conduct a preliminary search to ensure your desired trademark is available and not already used or registered by another party.

  2. Form Your LLC: Once you have identified an available trademark, form your LLC. This step will provide you with liability protection, tax advantages and enhance your business credibility.

  3. File Your Trademark Application: After establishing your LLC, file your trademark application as soon as possible. Doing so secures your brand's protection and ensures you have exclusive rights to your mark nationwide.

To put it plainly, in my opinion, it makes the most sense to form the LLC first and then

file the trademark application. This approach allows you to secure the benefits of limited liability protection and favorable tax treatment while simultaneously safeguarding your brand and intellectual property. Doing so in this order also allows you to register the Trademark under the business instead of you as an individual.


Conclusion


Ultimately, deciding whether to start an LLC or file a trademark first is a matter of assessing your business's unique circumstances and priorities. While there is no universally correct order, a balanced approach that involves conducting a preliminary trademark search, forming an LLC, and then filing a trademark application can offer significant benefits regarding liability protection, tax advantages, and brand protection.


Regardless of the path you choose, it is essential to consult with an attorney to ensure your decisions align with your business goals and comply with all legal requirements. This way, you can focus on building a successful and legally protected business.



Contact us Today at our Bergen County Office. Call Us at (201) 904-2211 or email Us at info@pjlesq.com

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If you would like more information about this post or want to discuss your legal matter with an attorney at the Law Offices of Peter J. Lamont, don't hesitate to contact me at pl@pjlesq.com or (201) 904-2211. Don't forget to check out and subscribe to our podcast and YouTube channel. We have hundreds of podcasts and videos concerning various business and legal topics. I look forward to answering any questions that you might have.

Peter J. Lamont, Esq. | NJ Attorney
Law Offices of Peter J. Lamont | New Jersey

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As with any legal issue, it is important that you obtain competent legal counsel before making any decisions about how to respond to a subpoena or whether to challenge one - even if you believe that compliance is not required. Because each situation is different, it may be impossible for this article to address all issues raised by every situation encountered in responding to a subpoena. The information below can guide you regarding some common issues related to subpoenas, but you should consult with an attorney before taking any actions (or refraining from acts) based on these suggestions. Separately, this post will focus on New Jersey law. If you receive a subpoena in a state other than New Jersey, you should immediately seek the advice of an attorney in your state, as certain rules differ in other states.

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