Yes, and it is one of the most common types of trademark I file. But the question most business owners actually need answered is different: they want to know whether the name they already registered with their state is protected. It is not. State LLC or DBA registration and federal trademark registration are two separate things, and the gap between them is where businesses lose their names.
State Registration Is Not Trademark Protection
Registering an LLC or DBA with your state gives you permission to operate under that name in that state. That is all it gives you. The secretary of state checks whether another entity in the same state already has that exact name, approves yours if it is available, and moves on. There is no review of conflicts with businesses in other states and no nationwide rights.
Federal trademark registration works differently. Under 15 U.S.C. Section 1072, a registration on the Principal Register provides constructive notice of your ownership claim nationwide. If someone in another state starts using your business name in your industry after your filing date, you have priority, even in states where you have never operated.
I see this play out regularly. A business spends years building a brand under a state-registered name, then discovers that a company in another state filed a federal trademark for the same name. The federal registrant has nationwide priority, and the original business is frozen into whatever geographic footprint it had at the time of that registration. The difference between a trade name and a trademark is the difference between a local permit and a nationwide property right.
Why Business Names Get Rejected
The most common reason business name applications fail at the USPTO is descriptiveness. Under Section 2(e)(1) of the Lanham Act, a mark that merely describes the goods or services cannot be registered without proof of acquired distinctiveness. Business owners pick names that tell customers exactly what they do, which is good marketing instinct but bad trademark strategy.
The USPTO evaluates every mark on a spectrum of distinctiveness. Fanciful names (Xerox, Kodak) and arbitrary names (Amazon for retail, Apple for computers) sit at the strong end and qualify for registration without extra proof. Suggestive names that hint at the service without describing it, like Netflix, also qualify. At the weak end are descriptive names, which identify a feature or purpose of the service, and generic terms, which name the service itself. Generic terms can never be trademarked. Descriptive terms can only be registered after years of use build consumer recognition.
Most small business names land in the descriptive zone. “Austin Premier Plumbing” describes a plumbing company in Austin. “Fresh Healthy Smoothies” describes smoothies. The USPTO will refuse these unless the owner proves consumers associate the name with one specific company, which typically requires five or more years of continuous use plus advertising evidence. The TTAB affirmed this in its 2024 WHOLESALEHOME decision, finding that combining two descriptive terms into one mark did not create a non-descriptive meaning, because consumers still understood it as describing a store that sells home goods at wholesale.
The second most common refusal is likelihood of confusion under Section 2(d). If someone already holds a federal trademark for a similar name in a related industry, your application will be refused. The two most heavily weighted du Pont factors are how similar the marks look and sound, and how related the goods or services are. Your name does not need to be identical to an existing mark, only similar enough that consumers might think the two businesses are connected.
Filing Reality: Classes, Specimens, and Timing
Picking the Right Class
A trademark protects a name in connection with specific goods or services, organized by the Nice Classification system’s 45 classes. A restaurant files in Class 43 (food services). A consulting firm files in Class 35 (business management). A hair salon files in Class 44 (beauty and hygiene). A general contractor files in Class 37 (construction). Each class carries its own $350 government fee.
The common mistake is filing in Class 35 because it sounds like it covers “business services” broadly. It does not. Class 35 covers advertising, business management, and retail store services. A landscaping company belongs in Class 44, not Class 35, and filing in the wrong class wastes your fee because the USPTO does not transfer applications between classes.
Specimens That Work
The USPTO requires a specimen showing your business name used in connection with your actual services. Your LLC certificate does not qualify. What works: a website screenshot showing the name alongside a description of your services (with the URL and access date), advertising that displays the name with what you offer, or invoices tying the name to delivered services. What does not work: a business card with only contact information, a mockup website, or a “coming soon” page.
When to File
If you are already using the name in commerce, you file under Section 1(a). If you have not launched yet, you file under Section 1(b) as an intent-to-use (ITU) application, which reserves your priority date while you get the business running but adds cost. After the USPTO approves the mark, you have six months to submit a Statement of Use ($150 per class), with up to five six-month extensions available at $125 each. Total ITU surcharge: $150 to $775 per class. If you never file the Statement of Use, the application is abandoned and your fees are gone.
What It Costs
Through my firm, federal trademark registration costs $1,195 plus the $350 government filing fee per class. Filing on your own costs $350 per class, but business name applications have a higher-than-average rejection rate because of the descriptiveness and confusion issues above. An office action response adds time and attorney fees that often exceed what you would have paid to file with an attorney from the start.
When Trademarking Your Business Name Is Worth It
Federal registration makes sense when you are building a brand you plan to use across state lines, when you are investing real money in marketing under the name, or when the name is distinctive enough to qualify. If you are operating a local service business under a descriptive name like “Denver Quality Painters,” your money is better spent on a name that the USPTO will actually register before you pay for an application.
Common law trademark rights do exist from use alone, but they are limited to your actual geographic market, and enforcing them requires litigation where you bear the burden of proving your territory. Federal registration shifts that burden, gives you access to federal court, and establishes a public record that deters competitors.
For pre-revenue startups, the ITU path locks in a priority date early. The question is whether the name you have chosen is worth protecting. If it is descriptive, fix the name first and file second.
Next Steps
If you are not sure whether your business name qualifies for federal registration, the first step is a clearance search to see what is already on the register. Contact my office and I will tell you where your name falls on the distinctiveness spectrum, whether there are conflicts in your class, and what filing path makes sense for your situation.
Common Trademark Topics for Business Owners
- Branding for Freelancers
- Trademarking a Logo
- Requirements for the Amazon Brand Registry
- Do Small Business Owners Need a Trademark Attorney?
- Trademarks vs Service Marks – What’s the Difference?
- Trademarks and Domain Names
- Can Your Trademark a DBA?
- Can You Trademark Packaging
- Can You Trademark a Business Model
- Can You Trademark a QR Code
- Can You Trademark a Business Concept
- Can You Trademark a Product
