How to Trademark Your Brand in the US as a Foreign Founder

Forming a US company and registering a US trademark are governed by entirely separate legal systems, filed with different government agencies, and subject to different rules — a distinction that matters immediately for foreign founders, because one of those systems imposes a requirement the other does not: a foreign-domiciled trademark applicant is legally required to be represented by a US-licensed attorney. This is not a formality or a best practice; it is a rule enforced by the United States Patent and Trademark Office (USPTO), and it is the first fact that should shape how a non-resident founder approaches trademark registration.

This guide sets out what US trademark registration actually involves, how it differs from the state-level name availability check performed at formation, and what a foreign founder needs to prepare before filing.

Trademark registration is separate from company formation

A common and consequential misunderstanding among first-time founders is treating the state’s confirmation that a company name is available — checked during LLC or C-Corp formation — as equivalent to trademark protection. It is not.

State name availability confirms only that no other entity in that state is registered under an identical or confusingly similar name. It says nothing about federal trademark rights and does not protect a brand name, logo, or slogan from use by others.

Federal trademark registration, administered by the USPTO, is a distinct legal process that grants exclusive nationwide rights to use a mark in connection with specific goods or services, and provides legal remedies against infringement. A company can have a perfectly valid, available Delaware LLC name that infringes someone else’s registered trademark — the two systems do not communicate with each other. (This distinction is covered in more detail in our guide on naming a Delaware company.)

The foreign applicant attorney requirement

Since 2019, USPTO rules have required that any trademark applicant whose domicile is outside the United States be represented by an attorney who is licensed to practice law in the United States. This applies regardless of the applicant’s nationality — it is based on domicile (where the individual or the entity is organized and has its principal place of business), not citizenship.

Practical implications:

• A foreign founder cannot file a US trademark application independently through the USPTO’s self-filing portal, even for a straightforward, uncontested mark
• The requirement applies to the entire life of the application and any resulting registration — ongoing filings (renewals, responses to office actions, amendments) also require attorney representation for as long as the applicant remains foreign-domiciled
• A US LLC or C-Corp formed by a foreign founder does not, by itself, exempt the applicant from this rule. What matters is the domicile of the entity applying for the mark — a US company with its principal place of business genuinely located in the US may qualify differently than a US-formed shell entity still operated entirely from abroad. This determination has real consequences and should be confirmed with the filing attorney rather than assumed.

This requirement is the single most important procedural fact for a foreign founder to understand before beginning the process: budget for attorney involvement from the outset, not as an unexpected add-on.

What a trademark actually protects

A US trademark registration can cover:

• Word marks — the name itself, in standard character format, independent of any particular font or styling
• Design marks — a logo or stylized presentation
• Combined marks — word and design together
• Slogans, in some cases, where the phrase functions as a source identifier

Registration is filed against one or more International Classes — a classification system covering specific categories of goods and services (for example, Class 042 for software services, Class 025 for clothing, Class 035 for business/advertising services). A mark is only protected within the classes it is registered under; the same word can be validly registered by different, unrelated companies in different classes if there is no likelihood of confusion between their respective goods or services.

The registration process, step by step

1. Clearance search. Before filing, a search of the USPTO’s federal trademark database — and ideally state and common-law sources as well — should be conducted to identify potentially conflicting marks. This is not a formal requirement, but filing without it risks a wasted application fee and months of delay if the USPTO’s own examination later identifies a conflict.
2. Selecting the correct class(es) and filing basis. The application must specify the relevant class(es) of goods/services and the legal basis for filing — most commonly Section 1(a) (already in use in commerce) or Section 1(b) (intent to use, for a mark not yet in active use). The choice of basis affects what documentation is required and when.
3. Filing the application. Filed electronically through the USPTO’s TEAS system, by the appointed US-licensed attorney on behalf of the foreign applicant. Filing requires the mark itself, the class and goods/services description, a specimen showing use (for Section 1(a) applications), and the appropriate government filing fee per class.
4. Examination. An assigned USPTO examining attorney reviews the application, typically within a few months of filing, for both procedural completeness and substantive conflicts with existing marks. If issues are identified, the USPTO issues an Office Action, which must be responded to within a set deadline — this is another point at which attorney representation is required for foreign applicants.
5. Publication for opposition. If the application passes examination, the mark is published in the USPTO’s Official Gazette for a 30-day opposition period, during which third parties may formally oppose the registration if they believe it conflicts with their own rights.
6. Registration (or, for intent-to-use applications, a Statement of Use). If no opposition is filed, a Section 1(a) application proceeds to registration. A Section 1(b) application instead receives a Notice of Allowance and must file a Statement of Use, with evidence of actual use in commerce, before registration completes.

Timeline and cost

Trademark timelines have lengthened in recent years as USPTO filing volume has increased. As a general range, uncontested applications commonly take 12 to 18 months from filing to registration, though this varies based on examination queue times, whether an Office Action is issued, and whether the application is opposed.

Costs generally include:

• USPTO government filing fee — charged per class of goods/services (verify current rates directly on uspto.gov, as fees are periodically updated)
• Attorney fees — required for foreign applicants at every stage, and variable based on the complexity of the mark and whether office actions or oppositions arise

Founders should budget for the full process, not just the initial filing, since an Office Action response or an opposition — while not universal — is a common enough occurrence that it should be planned for rather than treated as an unlikely edge case.

Common mistakes foreign founders make

1. Assuming state name availability equals trademark protection — addressed above, and a frequent, costly misunderstanding
2. Filing before conducting a clearance search, resulting in a rejected application and a lost filing fee for a conflict that could have been identified in advance
3. Attempting to self-file, which is not permitted for foreign-domiciled applicants and will result in the application being rejected or requiring correction
4. Filing in the wrong class, protecting the mark for goods or services the business does not actually offer, while leaving its actual offerings unprotected
5. Treating registration as instantaneous — building a brand, marketing materials, or a domain strategy around an unregistered mark as though protection were already secured

FAQ

Can I use a “TM” symbol before my mark is registered?

Generally yes — the ™ symbol can be used to indicate a claimed, unregistered trademark. The ® symbol, by contrast, may only be used once the mark is federally registered; using it prematurely is a misrepresentation with potential legal consequences.

Does forming a US LLC give me any trademark rights?

No. Company formation and trademark registration are entirely separate. Forming an LLC under a given name creates no trademark rights in that name.

Can I trademark a name that’s already used by a company in a different industry?

Potentially yes, depending on the classes involved and whether there is a likelihood of confusion between the goods/services. This is precisely the kind of determination that benefits from professional clearance analysis rather than assumption.

How long does trademark protection last?

A US federal trademark registration can last indefinitely, provided the required maintenance filings (a Declaration of Use around years 5–6, and combined renewal filings roughly every 10 years thereafter) are filed on time and the mark remains in active use.

Do I need a separate trademark application in every country where I do business?

Generally yes — US registration protects the mark within the United States. International protection requires either separate applications in each relevant country or, in many cases, a filing through the Madrid Protocol system, which is outside the scope of this guide.

Cooperative is not a law firm and does not provide legal advice. Trademark applications for foreign-domiciled applicants require representation by a US-licensed attorney; this article is for general informational purposes and does not substitute for that required legal representation. Requirements and fees are subject to change — verify current rules at uspto.gov and consult a licensed attorney for advice on your specific application.