August 2026: first publication. USPTO fee figures current to 37 C.F.R. 2.6 as amended November 18, 2024; processing wait times as published for data through June 30, 2026.
Quick answer
A new LLC may file a federal trademark application before its first sale, on the intent-to-use basis at 15 U.S.C. 1051(b). Forming the entity in Washington does not create trademark rights, and the filing date fixes priority once the mark registers.
The usual advice is to form the LLC first and trademark the name later. That sequencing is backwards more often than it is right. Forming a Washington limited liability company answers one question, which is whether the Secretary of State will let you file under that name. It does not answer the question that costs money later, which is whether someone else already owns the name as a brand in your category.
Federal law gives you a way to claim a filing date before you have sold anything at all. Most new owners do not know that option exists, so they wait until the business feels real. By then the earlier date often belongs to someone else.
At a glance
- Forming a limited liability company in Washington establishes that the name is distinguishable on the records of the Secretary of State under RCW 23.95.300. It does not create trademark rights.
- A federal application may be filed before any sales under the intent-to-use basis at 15 U.S.C. 1051(b), and under 15 U.S.C. 1057(c) the filing date operates as constructive use once the mark registers, conferring priority nationwide.
- An intent-to-use applicant must file a verified statement of use within six months after the notice of allowance, with one six-month extension as of right and further extensions aggregating not more than 24 additional months under 15 U.S.C. 1051(d).
- The USPTO fee for filing a trademark application electronically is $350 per class of goods or services under 37 C.F.R. 2.6(a)(1)(iii).
- For data through June 30, 2026, the USPTO reports an average of 4.2 months from filing to the first examining action and 9.8 months from filing to registration or abandonment.
The short version
Does forming an LLC in Washington give you rights to the name?
No. Forming a limited liability company in Washington establishes that the name is distinguishable on the records of the Washington Secretary of State, and nothing beyond that. Trademark rights come from use of a name to identify the source of goods or services, and from federal registration, not from entity formation.
- Washington law requires the name of a domestic entity to be distinguishable on the records of the secretary of state from existing entity names, registered foreign entity names, and reserved or registered names (RCW 23.95.300). The comparison runs against that database and no other.
- Washington law does not treat a variation in the words or abbreviations indicating entity type, such as Inc. against LLC, as making a name distinguishable (RCW 23.95.300(3)).
- The USPTO publishes that using a business name does not by itself qualify as trademark use, and that a business name becomes a trademark only where it is used as the source of goods or services.
- A Washington trade name, which is what other states call a DBA, is registered with the Department of Revenue under RCW 19.80.010. It identifies the name a business operates under and is a separate filing from entity formation.
- Three Washington records systems can hold the same name at the same time: the Secretary of State entity index, the Department of Revenue trade name register, and the Secretary of State trademark register under ch. 19.77 RCW. Clearing one does not clear the others.
Exception: A name already used by another business as a source identifier can be asserted against you under federal law even where the Washington Secretary of State accepted your entity filing, because rights of that kind arise from use rather than from any state register.
According to RCW 23.95.300, Washington State Legislature, as of July 2026.
Owners tend to read the Secretary of State’s acceptance as a green light on the name. It isn’t. All that filing tells you is that no other registered Washington entity is sitting in that exact slot on that one database, which is a much smaller statement than it sounds. The businesses that get a demand letter eighteen months in are almost never the ones that skipped the entity filing. They are the ones who treated the entity filing as the whole answer.
Washington’s trade name system trips people up for the same reason, and the mechanics are set out in our walkthrough of registering a trade name in Washington.
Can you apply for a trademark before you sell anything?
Yes. Section 1(b) of the Lanham Act allows a person with a bona fide intention to use a mark in commerce to file an application before any sales occur. Once that application matures into a registration, 15 U.S.C. 1057(c) treats the filing as constructive use of the mark, conferring a right of priority that is nationwide in effect from the filing date.
| Your situation | Filing basis | What the filing date does |
|---|---|---|
| The mark is already used in commerce | Use in commerce, 15 U.S.C. 1051(a) | The application states the date of first use and first use in commerce and includes a specimen of the mark as used |
| The name is chosen but the launch has not started | Intent to use, 15 U.S.C. 1051(b) | The filing date becomes the nationwide priority date once the mark registers, under 15 U.S.C. 1057(c) |
| Filed on intent to use, then began using during examination | Amendment to allege use, 15 U.S.C. 1051(c) | The application is brought into conformity with the use basis without giving up the original filing date |
| Priority claimed from a foreign application | 15 U.S.C. 1126(d) | Priority runs from the foreign filing where a U.S. application is timely filed on that basis |
Exception: An intent-to-use application requires a bona fide intention to use the mark in commerce, verified by the applicant under 15 U.S.C. 1051(b)(3). Parking a name with no genuine plan to use it is not what the statute provides for.
According to 15 U.S.C. 1051, Office of the Law Revision Counsel, U.S. House of Representatives, as of July 2026.
The intent-to-use option is the part most new owners have never heard of, and it is the part that matters most at formation. Filing under section 1(b) is not a reservation system. It is a place in line that only becomes real if you launch and then file the paperwork proving it. Owners who understand that distinction file early and calmly. Owners who do not tend to file late, after a competing name has already appeared in the same category, and by then the conversation is about rebranding instead of protecting.
The formation side of this sequence, including what Washington requires at the certificate stage, is covered in our post on setting up an LLC in Seattle.
How long do you have to start using the mark after an intent-to-use filing?
An intent-to-use applicant must file a verified statement of use within six months after the USPTO issues the notice of allowance, and 15 U.S.C. 1051(d)(2) grants one further six-month extension on written request, plus additional extensions on a showing of good cause for periods aggregating not more than 24 months. As of July 2026, the electronic statement of use fee is $150 per class and each six-month extension request is $125 per class.
| Filing after the notice of allowance | Deadline | Electronic fee per class |
|---|---|---|
| Statement of use, 15 U.S.C. 1051(d)(1) | Within six months after the notice of allowance issues | $150, 37 C.F.R. 2.6(a)(3)(ii) |
| First extension request, 15 U.S.C. 1051(d)(2) | Before the initial six-month period expires. Granted as of right | $125, 37 C.F.R. 2.6(a)(4)(ii) |
| Later extension requests, 15 U.S.C. 1051(d)(2) | Good cause required, for periods aggregating not more than 24 additional months | $125 each, 37 C.F.R. 2.6(a)(4)(ii) |
| Amendment to allege use, 15 U.S.C. 1051(c) | At any time during examination of the application | $150, 37 C.F.R. 2.6(a)(2)(ii) |
| Nothing filed | Failure to file a timely statement of use or extension request abandons the application under 15 U.S.C. 1051(d)(4) | Not applicable |
Exception: The outer limit runs from the notice of allowance rather than from the filing date, so an application that sits in examination for a year does not lose any of that window. Under 15 U.S.C. 1051(d)(4), a missed deadline may be excused where the delay is shown to have been unintentional.
According to 15 U.S.C. 1051(d), Office of the Law Revision Counsel, U.S. House of Representatives, and 37 C.F.R. 2.6, United States Patent and Trademark Office, as of July 2026.
Three years sounds like generous runway until you watch a launch slip twice. Here is what I see in practice: the deadline rarely fails because somebody forgot it. It fails because the product was not ready and a $125 extension request looked like an expense worth skipping that quarter. Calendar the notice of allowance the day it arrives, then calendar every deadline that runs behind it.
How long does a federal trademark application take?
For data through June 30, 2026, the USPTO reports an average of 4.2 months from filing a new application to the first examining action, and an average of 9.8 months from filing to either registration or abandonment. Both averages sit inside the agency’s published fiscal-year targets of 5.0 months and 11.0 months.
- For data through June 30, 2026, the USPTO reports that pre-examination processing of applications filed electronically averages 99 days against a 10-day target.
- For data through June 30, 2026, initial processing of a statement of use averages 64 days against a 15-business-day target, and the office reports processing statements of use filed on or before April 14, 2026.
- For data through June 30, 2026, initial processing of an intent-to-use extension request averages 116 days against a 15-business-day target.
- The USPTO’s total pendency measure excludes applications previously suspended or involved in inter partes proceedings before the Trademark Trial and Appeal Board. A separate measure that includes those applications carries a 14-month fiscal-year target.
- The USPTO publishes that applications filed with no fee surcharges are more likely than other filing types to be approved at first action, which shortens the path to registration.
Exception: An application that draws an office action, faces an opposition after publication, or is suspended pending an earlier-filed application falls outside these averages, and the USPTO tracks those applications under a separate measure.
According to Trademark processing wait times and the Trademarks dashboard, United States Patent and Trademark Office, data through June 30, 2026.
Clients hear ten months and assume the name is exposed for ten months. That is not what the filing date does. What you buy on the day you file is not just a position in the examination queue, but the priority position itself, and that position holds from the filing date as long as the application eventually registers. The waiting is uncomfortable. It is not the same thing as being unprotected.
Should you register the mark in Washington instead of federally?
Washington maintains its own trademark register under ch. 19.77 RCW, administered by the Secretary of State, and a Washington registration runs for five years and may be renewed for successive five-year terms. State registration reaches Washington only and covers a mark already used in commerce, so it does not stand in for a federal filing where the business sells or plans to sell beyond the state.
| Question | Federal registration (USPTO) | Washington registration (Secretary of State) |
|---|---|---|
| Can you file before you start using the mark? | Yes, on the intent-to-use basis at 15 U.S.C. 1051(b) | No. The state program registers a mark that has been used in commerce |
| Reach of the priority right | Nationwide constructive use from the filing date once the mark registers, 15 U.S.C. 1057(c) | Washington |
| Filing fee | $350 per class filed electronically, 37 C.F.R. 2.6(a)(1)(iii) | $55 per classification, Washington Secretary of State trademark registration form (RCW 19.77.030) |
| Deadline pressure after filing | An intent-to-use applicant files a statement of use within six months of the notice of allowance, extendable under 15 U.S.C. 1051(d) | Not applicable, because the mark is already in use when the application is filed |
| Renewal cycle | Periodic maintenance filings under 37 C.F.R. 2.6(a)(12) and 2.6(a)(5) | Successive five-year terms, renewable for goods or services still in use in Washington |
Exception: Federal registration under 15 U.S.C. 1051(a) rests on use of the mark in commerce, so a business whose activity is entirely inside Washington should confirm that it meets that requirement before paying a federal filing fee.
According to the Washington Secretary of State trademarks program, Office of the Secretary of State, as of July 2026.
State registration gets recommended a lot because it is cheap, and cheap is not the same as sufficient. Washington registration is a fence around your own yard, useful right where you stand and irrelevant one state over. For a business that will only ever serve King County, that may be exactly the right size. For anything sold online, it is a fence with no yard behind it, and the same money would do more work as part of a federal filing.
If the entity itself is still being set up, the naming decision belongs in that same conversation, and how we handle business formation work in Seattle sets out what that stage covers.
Name decisions are cheapest at formation
Almost every expensive name problem starts as a decision that felt too small to ask about. The Secretary of State accepted the filing, the domain was available, the logo got made. Nobody checked whether the name already belonged to a business selling the same thing three states away.
The sequence that works is boring. Pick the name, search it properly, decide on the filing basis, then form the entity and file in the order that protects the earlier date.
K&S Canon handles business formation, corporate governance, and commercial transactions for clients in Seattle and King County. If you are setting up a new entity and the name matters to the business, raise it while the structure is still on the table. Call (206) 507-4009 or contact K&S Canon.