Legal Question in Intellectual Property in Virginia

Is it advisable to trademark a name of a business prior to filing a LLC under that name for the business

or

can one file their business as a LLC under a name and then trademark that name, also what are the risks of using a business name that has not been trademarked...

Bottom line: If one files as a LLC and spends research and development dollars into that business/LLC and has a domain name for that business can anyone just come along and see that name online or hear about and then file for trademark and then claim access to the name of business that I created?


Asked on 2/15/11, 3:11 pm

1 Answer from Attorneys
Kevin B. Murphy Franchise Foundations, APC

As a Franchise Attorney I can say this. Trademark rights usually arise upon use, unless an intent to use application is filed with the USPTO. If you intent to use a name, and want to protect it federally (with presumptive rights in all states), then file an intent to use application with the USPTO. Otherwise someone else, possibly in another state, can see your domain name, etc. and start using it, establishing common law rights in their trading area. This is a complex area of law, so consult with a good intellectual property or franchise attorney in your area for specific advice.

Mr. Franchise - Kevin B. Murphy, B.S., M.B.A., J.D.

Franchise Foundations, a Professional Corporation

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Answered on 2/15/11, 9:57 pm


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