Trademark basics for small business come down to four steps: choose a distinctive name, search to make sure no one else has prior rights, register it with the U.S. Patent and Trademark Office (USPTO), and keep the registration alive with use and on-time maintenance filings. As of October 2026, the USPTO’s base application fee is $350 per class of goods or services, with possible surcharges. Getting the early steps right is far cheaper than rebranding after a dispute.
What a trademark is (and what it isn’t)
A trademark is a word, phrase, logo, or other identifier that tells customers who a product or service comes from. A mark for services is sometimes called a service mark, but the rules are largely the same.
A few common misunderstandings:
- A business name filing isn’t a trademark. Registering an LLC with your state, or buying a domain, doesn’t give you trademark rights.
- Trademark rights come from use. In the U.S., you can build rights simply by using a mark in commerce. Registration strengthens and expands those rights.
- Trademarks protect brands, not ideas. Copyrights cover creative works. Patents cover inventions. Trademarks cover source identifiers.
The trademark strength spectrum
Not all names are equally protectable. Courts and the USPTO place marks on a spectrum from weakest to strongest:
| Category | Example concept | Protectable? |
|---|---|---|
| Generic | “Plumbing” for plumbing services | Never |
| Descriptive | “Fast Plumbing” for plumbing services | Only after acquiring distinctiveness (customers associate it with you) |
| Suggestive | A name that hints at the service but requires imagination | Yes |
| Arbitrary | A real word unrelated to the product (like a fruit name for computers) | Yes, strong |
| Fanciful | An invented word | Yes, strongest |
Small businesses often want descriptive names because they explain the business instantly. The trade-off is weak protection and frequent USPTO refusals. A suggestive, arbitrary or fanciful name usually costs more marketing effort at first but is easier to register and enforce.
Run a trademark clearance search before you commit
Before you print signs or build a website, find out whether someone else already has rights in a similar mark for related goods or services. The legal test is “likelihood of confusion,” not exact matches. A similar name in a related industry can block you.
A clearance process typically includes:
- A knockout search of the USPTO’s federal trademark database for identical and similar marks.
- A broader search of state registrations, business name databases, domain names, social media and general web use. Unregistered users can have rights in their local market.
- A legal review of the results, weighing how similar the marks are, how related the goods and services are, and how strong the existing marks are.
Skipping clearance is one of the most expensive branding mistakes. A cease-and-desist letter after launch can force a rebrand of signage, packaging, vehicles and online presence.
Federal registration with the USPTO
Why register federally
Federal registration on the Principal Register offers benefits that common-law use alone doesn’t:
- A legal presumption that you own the mark and have exclusive rights nationwide for the listed goods and services
- Nationwide priority, even in areas where you haven’t expanded yet
- The right to use the ® symbol
- The ability to sue in federal court and to record the registration with U.S. Customs and Border Protection to help stop infringing imports
- A basis for filing in other countries
How filing works now
New applications are filed through the USPTO’s Trademark Center, which replaced the older TEAS initial application forms in January 2025. You need a USPTO.gov account, and identity verification is mandatory to file through the USPTO’s trademark systems.
You’ll choose a filing basis:
- Use in commerce: You’re already using the mark and submit a specimen showing that use.
- Intent to use: You have a good-faith plan to use the mark. This can lock in an earlier priority date before launch.
Current USPTO trademark fees (as of October 2026)
In January 2025, the USPTO replaced its two-tier application fees with a single base fee plus surcharges. According to the USPTO fee schedule, electronic filing fees include:
| Filing | Fee (per class) |
|---|---|
| Base application | $350 |
| Surcharge: insufficient information | $100 |
| Surcharge: free-form text instead of the ID Manual | $200 |
| Surcharge: each additional 1,000 characters of free-form text | $200 |
| Statement of use (intent-to-use applications) | $150 |
| Extension of time to file a statement of use | $125 |
| Section 8 declaration of use | $325 |
| Section 9 renewal | $325 |
| Section 15 declaration of incontestability | $250 |
Each class of goods or services is charged separately. A business filing in three classes pays at least $1,050 in base fees. USPTO fees are separate from any attorney fees and are not refundable if the application is refused.
What happens after you file
An examining attorney reviews the application. If there are problems, such as a likely conflict or a descriptive mark, you’ll receive an office action. You generally have three months to respond, with one three-month extension available for a $125 fee. Missing the deadline leads to abandonment.
If the application is approved, it’s published for opposition, giving third parties a chance to object. For intent-to-use applications, the USPTO then issues a notice of allowance. You must file a statement of use within six months, and you can request up to five six-month extensions, so you have up to three years from the notice of allowance to prove use.
State vs. federal trademark registration
Every state offers its own trademark registration. State registration is generally less expensive and faster, but it covers only that state.
| State registration | Federal registration | |
|---|---|---|
| Geographic scope | One state | Nationwide |
| Requires interstate commerce | No | Yes (use in commerce Congress can regulate) |
| Use of ® | No | Yes |
| Federal court and Customs benefits | No | Yes |
State registration can make sense for a business that truly operates locally and doesn’t qualify for federal registration. Most growing businesses that sell across state lines or online look at federal registration first.
™ vs. ®: which symbol to use
- ™ (or ℠ for services): Anyone can use it to claim rights in a mark, registered or not. It has no official status but puts others on notice.
- ®: Only for marks registered with the USPTO, and only on the goods and services in the registration. Under 15 U.S.C. § 1111, using registration notice affects whether you can recover profits and damages in an infringement suit. Using ® for an unregistered mark can cause problems with your application or in litigation.
Trademark maintenance deadlines
A federal registration can last indefinitely, but only if you keep using the mark and file on time. Per the USPTO’s maintenance guidance:
- Between years 5 and 6 after registration: File a Section 8 declaration of continued use. If you’ve used the mark continuously for five years, you can also file an optional Section 15 declaration to make the registration incontestable.
- Between years 9 and 10: File a combined Section 8 declaration and Section 9 renewal.
- Every 10 years after that: File another combined Section 8 and 9.
Each deadline has a six-month grace period with an added fee. Miss the grace period and the registration is canceled or expires. The USPTO also audits some maintenance filings and can require more proof of use, so only claim goods and services you actually offer.
Non-use matters too. Under 15 U.S.C. § 1127, three consecutive years of non-use is prima facie evidence of abandonment.
Trademark enforcement basics
Owning a mark means policing it. If you don’t, your rights can weaken over time.
- Monitor: Watch the USPTO’s records, the web and your market for similar marks. Watch services can help.
- Assess before acting: Not every similar name is infringement. Consider the similarity, the overlap in goods and customers, and the strength of your own rights.
- Escalate in steps: Many disputes resolve with a letter, a coexistence agreement, or a license. Others go to the USPTO’s Trademark Trial and Appeal Board (for registration disputes) or federal court.
- Unregistered marks still have some protection: Section 43(a) of the Lanham Act allows claims for false designation of origin, but proving rights without a registration is harder.
Be careful on the other side too. An aggressive demand letter sent without a solid basis can backfire, so talk to a lawyer before you send one.
Make trademarks part of your regular legal work
Trademarks touch branding decisions, contracts, licenses and eventually any sale of the business. Buyers will ask whether the company, not an owner personally, owns the registrations. See our guide on preparing your business for sale.
Flex Business Lawyer subscribers can use their up to 5 monthly attorney hours on clearance reviews, USPTO filings, office action responses, maintenance deadlines and enforcement letters. Chris Clark has more than 20 years of practice in business and intellectual property law. You can see how the subscription is priced or start your subscription. If you’re also building out your agreements, our post on essential contracts for growing businesses covers licensing and IP assignment terms.
Frequently asked questions
How much does it cost to register a trademark with the USPTO?
As of October 2026, the USPTO’s base application fee is $350 per class of goods or services. Surcharges can apply: $100 per class for insufficient information, $200 per class for using a free-form description instead of the USPTO’s ID Manual, and $200 per class for each additional 1,000 characters. Intent-to-use applications also require later fees, such as $150 per class for a statement of use.
Can I use the ® symbol before my trademark is registered?
No. The ® symbol is reserved for marks registered with the USPTO, and only for the goods and services in the registration. You can use ™ (or ℠ for services) at any time to signal that you claim rights in a mark.
Do I need a federal trademark registration if I already have an LLC with that name?
Forming an LLC or corporation with a name doesn’t give you trademark rights in that name. State business-name filings mainly prevent another entity from registering an identical name in that state. Trademark rights come from use in commerce, and federal registration adds nationwide benefits.
How long does a federal trademark registration last?
A registration can last indefinitely if you keep using the mark and file maintenance documents on time. A Section 8 declaration is due between the 5th and 6th years after registration, and combined Section 8 and 9 renewals are due between the 9th and 10th years and every 10 years after that, each with a six-month grace period for an added fee.
Should I file a trademark application before I launch?
You can. An intent-to-use application lets you file based on a good-faith plan to use the mark, which can establish an early priority date. The registration won’t issue until you show actual use, and there are deadlines and fees for filing that proof.