An LLC or a DBA is not a trademark.
Forming a Texas LLC or corporation, or filing an assumed name certificate with a county clerk, authorizes you to do business under a name. It does not search the federal trademark register for conflicts, and it does not give you the exclusive right to use the name for your goods or services. The Texas trademark statute says as much: a trade name is not registrable as such, and is registrable only if it is also used as a service mark or trademark (Tex. Bus. & Com. Code § 16.002(b)). Trademark rights come from using the name as a brand, and are strengthened by registration, federally with the USPTO or in Texas with the Secretary of State.
Federal and Texas registration compared.
Most businesses that sell online, ship across state lines, or plan to grow beyond Texas should start with a federal registration. A Texas registration is a smaller, cheaper, state-level right that can supplement it or, for a purely local business, stand in for it.
| Federal (USPTO) | Texas (Secretary of State) | |
|---|---|---|
| Governing law | The Lanham Act, 15 U.S.C. § 1051 et seq. | Tex. Bus. & Com. Code ch. 16 |
| Reach | Nationwide constructive notice of your claim (15 U.S.C. § 1072). | Constructive notice throughout Texas (§ 16.060(b)). |
| Filing before launch | Yes, on an intent-to-use basis (15 U.S.C. § 1051(b)). | No. The mark must already be in use in Texas, and use made merely to reserve a right does not count (§§ 16.003(c), 16.052(b)). |
| Government fee | $350 per class base application fee, with surcharges in some cases. | $50 per class (1 Tex. Admin. Code § 93.151). |
| Examination | Examined by a USPTO examining attorney. | Examined by the Secretary of State, which can refuse a mark that resembles a Texas-registered mark or an unabandoned federally registered one (§§ 16.051(a)(7), 16.053). |
| Term | Ten years, with a Section 8 filing between years five and six. | Five years, renewable for $25 per class with a verified statement of use and a specimen (§ 16.059). |
| The ® symbol | Available once the mark is registered (15 U.S.C. § 1111). | Not available. Use ™ or ℠. |
Fees are set by the agencies and change from time to time; confirm against the current schedules. Attorney fees are separate and are scoped at engagement.
When a Texas registration makes sense.
A Texas registration is prima facie proof of the registrant's ownership and exclusive right to use the mark in Texas for the goods or services listed (§ 16.060(c)), and it supports a claim of infringement under § 16.102. Texas also protects a mark that is famous in the state against dilution (§ 16.103), whether or not it is registered there. A state registration fits a business that operates only in Texas, such as a single-location restaurant or a regional service provider, and cannot yet meet the federal standard. It also fits an owner who wants a low-cost record on the Texas register while a federal application is pending. It does not substitute for federal registration once the brand sells beyond the state, and it does not qualify a brand for programs that look to a national trademark office. Existing common-law rights are not affected by a Texas registration (§ 16.107).
What this practice does for Texas businesses.
- Clearance: federal, Texas, and common-law conflicts before you invest in signage, packaging, or software.
- Federal registration: application strategy and prosecution on a use or intent-to-use basis.
- Texas registration: preparing the application, answering Secretary of State objections, and renewals and assignments.
- Office action responses for applicants whose own filing was refused.
- TTAB practice, enforcement and licensing, and portfolio management.
Where we work.
The office is at One Riverwalk Place in downtown San Antonio. The practice represents businesses in San Antonio, Austin, Houston, Dallas–Fort Worth, the Hill Country, and across Texas, and clients nationwide, by video and telephone. Trademark practice before the USPTO is federal and is not limited by where the client or the attorney is located (37 C.F.R. § 11.14).
Frequently asked questions.
Does forming my LLC protect my business name?
No. Forming an entity or filing an assumed name certificate lets you operate under the name. It does not search the federal trademark register, and it does not give you the exclusive right to use the name as a brand. See the discussion at the top of this page.
Can I file a Texas trademark application before I launch?
No. A Texas application must state that the mark is in use and give the dates of first use (Tex. Bus. & Com. Code § 16.052(b)), and use made only to reserve a right is not bona fide use (§ 16.003(c)). To secure a name before launch, a federal intent-to-use application is the route.
Does Texas examine trademark applications for conflicts?
Yes. The Secretary of State examines each application under Chapter 16, and can refuse a mark that resembles one registered in Texas or an unabandoned mark registered with the USPTO (§§ 16.051(a)(7), 16.053). A Texas application is not a rubber stamp, and it does not substitute for clearance.
How much does it cost to register in Texas compared with federally?
The Texas government fee is $50 per class and the renewal fee is $25 per class (1 Tex. Admin. Code § 93.151). The USPTO base application fee is $350 per class, with surcharges in some cases and later maintenance filings. Attorney fees are separate and are scoped at the strategy call.
Should I register federally, in Texas, or both?
If the brand sells online, ships out of state, or may grow beyond Texas, federal first. A Texas registration can be added as a supplement. If the business is and will remain local, a Texas registration alone can be enough. The decision depends on the business, and it is made at the strategy call.
Do I have to be in San Antonio to work with you?
No. The practice works with clients across Texas and nationwide by video and telephone.
Contact the office.
Ortman Law Firm, PLLC
One Riverwalk Place, 700 N. Saint Mary’s Street, Suite 1400
San Antonio, Texas 78205-3535
(210) 361-2425