Do You Need a Trademark or LLC First? What Business Owners Should Know

If you’re starting a business, you’ve probably come across two important legal terms: LLC and trademark. You may be wondering, “Should I register my LLC first or file for a trademark first?”

That’s a great question, and one that new business owners in Florida (and beyond) ask all the time. Making the right decision early on can save you from legal headaches down the road and help set your brand up for long-term success.

In this blog post, we break down the differences between LLCs and trademarks, what each protects, and the best order to handle them depending on your business goals.

What’s the Difference Between an LLC and a Trademark?

Before we talk about which one to form first, it’s important to understand what they are and what they’re not.

What Does an LLC Protect?

A Limited Liability Company (LLC) is a legal business structure that separates your personal assets from your business liabilities. Forming an LLC in Florida protects you as the owner if your business is sued or incurs debt.

An LLC:

• Registers your business with the state
• Provides limited liability protection
• Allows you to open a business bank account
• Establishes your business for tax purposes

However, forming an LLC does not protect your brand name, logo, or slogan on a national level.

What Does a Trademark Protect?

A trademark protects your business name, logo, slogan, or other brand identifiers from being used by someone else. If someone tries to use a name or logo that’s confusingly similar to yours, a registered trademark gives you the legal right to stop them.

A trademark:

• Protects your brand identity in commerce
• Helps prevent customer confusion
• Grants national rights when federally registered
• Adds credibility and value to your brand

Unlike an LLC, a trademark doesn’t form your business, it protects its brand.

Should You Start With a Trademark or LLC First?

Here’s the reality: it depends on your priorities and your business stage. But in many cases, forming an LLC first makes more sense.

Why Most Business Owners Should Register the LLC First

For most startups and small businesses, the LLC comes first for a few key reasons:

1. You Can’t File a Trademark Without a Legal Owner: The trademark must be filed by an entity, either an individual or a business. If you plan to operate under a business name, it’s cleaner to file the trademark under your LLC, not your personal name. 
2. LLC Names Are Checked for Availability: When you form an LLC in Florida, the state checks if the business name is already in use. This gives you a limited form of name protection within Florida. It’s not a trademark, but it’s a good first step. 
3. You Need the LLC for Legal and Tax Purposes: You’ll likely need the LLC to open a business bank account, sign contracts, and start operating officially. Delaying that can hold up other essential parts of your launch.
   

Bottom line: In most cases, it’s smart to form your LLC first, and then apply for your trademark once the business entity exists.

What If I’m Not Ready to Launch but Want to Protect My Brand?

If you’re not ready to form an LLC but want to secure your brand name, you can file a trademark under your personal name using an “intent to use” application. This is common for entrepreneurs who are still planning their launch but want to protect their name early.

Later, once your LLC is formed, you can assign the trademark rights from yourself to your company.

Can I Use a Business Name Without a Trademark?

Yes, but it’s not ideal. Here’s why:

• Without a registered trademark, your name is only protected in your immediate geographic area through what’s called common law rights.
• If another business in a different state trademarks the same or similar name before you do, they can stop you from using it, even if you used it first in your city.
• You may also face legal issues if you unintentionally use a name that someone else has already registered.

In short, having an LLC doesn’t protect your business name nationally, but a trademark does.

What Happens If Someone Else Has My Business Name Trademarked?

This is where things get tricky. Even if Florida lets you form an LLC with a certain name, that doesn’t mean it’s legally safe to use it. If someone else has trademarked the name federally, they can send you a cease and desist letter and possibly sue you for trademark infringement.

That’s why we always recommend doing a trademark search before choosing your LLC name. At Ayala Law, we handle this research for clients to help avoid problems later.

What’s the Best Way to Protect My Business Name?

The best approach is to combine both an LLC and a trademark:

1. Register your LLC with the State of Florida to officially form your business.
2. Conduct a trademark search to confirm your name or logo is available.
3. File a federal trademark application with the U.S. Patent and Trademark Office (USPTO) to protect your brand nationally.
   

This two-step approach ensures you’re protected both legally and in the marketplace.

Let Us Help You With LLCs and Trademarks

At our law firm, we regularly assist entrepreneurs and business owners throughout Florida with:

• Forming LLCs
• Drafting operating agreements
• Conducting trademark searches
• Filing and maintaining federal trademark registrations
• Resolving trademark disputes

We make the process straightforward so you can focus on growing your business with confidence.

Final Thoughts: LLC First, Then Trademark—But Don’t Skip Either

While every situation is different, most Florida business owners are best served by starting with an LLC, then filing a trademark to protect the brand. An LLC gives you the legal structure to operate, and a trademark gives your business its identity and exclusivity in the marketplace.

If you’re ready to form an LLC, protect your business name, or just want guidance on where to start, contact an experienced business, arbitration, and product defect attorney in Miami at 305-570-2208.

You can also contact arbitration attorney Eduardo A. Maura at eduardo@ayalalawpa.com.

 

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