Trademark Basics for Startups: When to File and When to Reserve a Name

Company name vs. trademark: two different systems

Reserving or incorporating under a company name with the Secretary of State only confirms that name is available for corporate filings in that state. It says nothing about whether you can legally use that name as a brand for your product, or whether someone else already has stronger rights to it. Trademark rights are a separate, national system administered by the USPTO—and in the US, they can also arise from actual use in commerce, not just registration.

It's also worth knowing what a trademark isn't. It protects a brand name or logo used to identify goods or services—not the underlying invention (that's a patent), not the creative work itself like code or copy (that's a copyright), and not your web address or state business registration, both of which are separate systems with their own rules and neither of which gives you trademark rights on their own.

When to start thinking about it

• Before you commit to a name publicly: A basic clearance search (checking the USPTO database and obvious web/social presence) before launch can save you a rebrand later. Discovering a conflict after your name is on a pitch deck, a domain, and a product is far more expensive to fix.
• Before a fundraise or major marketing spend: Investors and larger customers increasingly ask about trademark status during diligence, especially once a brand has real market presence to protect.
• When you expand internationally: US trademark rights don't automatically extend abroad; each jurisdiction generally requires its own filing (for example, through the EUIPO for the EU).

What the USPTO filing process actually looks like

Filing isn't a single event—it's a process with real deadlines at every stage, and missing one can cost you the application. Roughly:

• Clear the mark: Search the USPTO database and the obvious commercial landscape before you file, to catch a conflict while it's still cheap to fix.
• Choose your filing basis and format: File based on current use in commerce, or on a good-faith intent to use the mark soon if you haven't launched yet. You'll also lock in the mark's format—plain text, a stylized logo, or in rarer cases a sound mark—and the specific classes of goods or services it covers. Get the classes too narrow and a rebrand into an adjacent product line can leave you unprotected there.
• If you're filing from outside the US: the USPTO requires foreign-domiciled applicants to be represented by a US-licensed attorney; a US applicant can technically file alone but rarely should, given how much of the process turns on legal argument. This is a common step in the same redomiciling work covered in our piece on Delaware flips—founders moving their company to Delaware often need US trademark counsel at the same time.
• Examination: A USPTO examining attorney reviews the application and may issue an office action—a formal objection, often citing a likelihood of confusion with an existing mark or a description problem. You typically have three months to respond, and a non-response means the application is abandoned.
• Publication: Once approved, the mark is published for opposition. Third parties get a 30-day window to object before it proceeds.
• Registration or notice of allowance: Use-based applications that clear publication get registered. Intent-to-use applications instead get a notice of allowance, and you then have six months (extendable) to actually start using the mark and file proof before registration issues.
• Maintenance: Registration isn't the finish line. You have to file maintenance documents between years 5-6 and again between years 9-10, or the registration lapses and you're starting over.

The USPTO publishes its own walkthrough of this process, worth bookmarking for reference: uspto.gov/trademarks/basics/trademark-process.

Common founder mistakes

The recurring ones: launching under a name without any clearance search, assuming a domain name or LLC name confers trademark rights, filing in classes too narrow to cover where the product is headed, waiting until after a cease-and-desist letter arrives to think about it, treating an office action as something to ignore rather than respond to on deadline, and forgetting the maintenance filings once the registration issues.

FAQ

Do I need a trademark before I launch?

Not strictly, but a clearance search before launch is cheap insurance against a costly rebrand. Filing itself can happen before or shortly after launch.

What happens if I get an office action?

It's common, not fatal. Most office actions can be addressed with a legal response, though timing matters—deadlines are strict and missing one can end the application.