Filing a trademark for a company during its creation: practical guide

When a company is in the process of being created, protecting its trademark from the outset is a strategic priority. But should the trademark be filed in the founder’s personal name before incorporation, or should it be registered in the name of the company being formed? The latter approach offers several advantages and avoids certain legal complications. Here is what you need to know.

Why file a trademark for a company being formed?

Filing a trademark in the name of a company being formed allows the founder to secure the commercial identity immediately before incorporation, avoid a subsequent transfer and the associated formalities, prepare for future commercial use without the risk of personal claims, and simplify the legal procedures at the time of final incorporation.

When a trademark is filed in the founder’s personal name and later transferred to the company once incorporated, this involves additional costs and administrative steps that can delay commercial use. There is also a risk of forgetting to complete the transfer, which creates legal exposure.

Key points to consider

While filing in the name of the company being formed is advantageous, certain precautions must be observed:

• Verify the availability of the name before filing to avoid conflicts with third parties.
• Finalise incorporation promptly, as the company being formed has only a temporary legal existence.
• Ensure that the filing correctly identifies the company being formed, and not simply the founder’s personal name.
• Formally ratify the trademark filing by the company, either in the articles of association at the time of incorporation, or by a resolution of the shareholders’ meeting. This is the step most often overlooked.
• Record the ratification with the INPI to formalise the takeover by the company once incorporated.

Comparison: filing in the founder’s name vs after incorporation

Filing a trademark in the founder’s personal name before the company is created may seem simpler, but it has drawbacks: the transfer to the company involves fees and formalities, in the event of a dispute before the transfer the founder remains personally liable, and a poorly structured assignment can create legal issues.

It is also possible to file the trademark only after the company has been incorporated. This avoids the need for a transfer, but it creates a gap between the creation of the business and the effective protection of the mark. If another entity files a similar trademark in the meantime, the company may lose its commercial name or be forced to negotiate.

Conclusion

Anticipating the trademark filing for a company being formed is an effective way to avoid legal and financial complications. It is a matter to address from the earliest stages of your project. If you need to secure your trademark, book a call.

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