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Trademark Attorney for Marketing and Branding Agencies: Your Name, Your Clients' Names, and Who Owns What

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A trademark attorney for a marketing, branding or creative agency does two jobs: clears and files the agency's own name, usually in Class 35 for advertising and marketing and Class 42 for design, and makes sure the names and logos you create for clients end up owned by the client, with assignment language that actually transfers them. At Citrus Legal, the agency's own name starts with Seed, a flat-fee $650 clearance search with a written opinion.

Agencies sit in an odd spot. You build brands for a living, so your own brand gets the least attention. And the client work raises ownership questions that most clients never think to ask until a buyer, an investor or a trademark examiner asks for them.

What a trademark attorney checks for an agency

Whether your agency name is crowded. Agency names lean on the same small set of words: studio, collective, creative, co, lab, house, and a handful of color and light words. In a crowded field, small differences can be enough to coexist, but your name also gets less room. A search tells you how close the nearest names are and which version of your name is strongest. For a fictional Orlando agency called Brightkettle Studio, the question isn't whether "studio" is available. It's whether Brightkettle is, for advertising and design services.

Who owns the logo files you deliver. Copyright in artwork starts with whoever creates it. Work your employees make within the scope of their jobs generally belongs to the agency as work made for hire. Work your freelancers make doesn't. For an independent contractor, a work only counts as made for hire in a short list of categories, with a signed written agreement, and a logo usually isn't in those categories. So the freelancer may own the copyright in a logo your agency delivered, unless the freelancer signed a written assignment to you. I covered this from the client's side in the article on hiring a freelance designer.

That means the chain has two links. Your freelancer agreements should assign rights to the agency. Your client agreements should assign them from the agency to the client, usually once the client has paid. If either link is missing, the client's chain of title has a gap, and it tends to surface during a sale, a funding round or a dispute.

Who owns the name you came up with. Trademark rights don't come from inventing a name. They come from using it to sell goods or services. In a 2026 precedential decision, the Trademark Trial and Appeal Board repeated that "merely designing or inventing a symbol does not create trademark rights," and held that goodwill from using a logo to promote a business belonged to the business. I wrote about that case in the article on who owns a brand built at work. For an agency, the takeaway is that the client who uses the name is normally the owner of the mark, not the agency that suggested it.

Who files the application. This is where well-meaning agencies get into trouble. Only the owner can apply, and the federal rule says an application "filed in the name of an entity that did not own the mark as of the filing date of the application is void." An agency that files a client's name in the agency's own name, to hold it until the invoice is paid, is setting up a void application. If it was filed on an intent-to-use basis, federal law also limits assigning it before use is shown, so it can't simply be handed over later.

Filing on a client's behalf has its own limit. Under the USPTO's rules, representing others in trademark matters, including preparing an application and advising on it, is practice reserved for attorneys. A non-attorney agency can't sign for the client or act as its representative. The client can file for itself, or the agency can bring in a U.S.-licensed attorney. I explained where that line sits in the article on whether you need a lawyer to trademark.

Whether you clear names before you present them. A naming project often ends with three to five finalists on a slide. If the client falls for one that's already registered for related goods, you've created a problem you then have to talk them out of. Picture Brightkettle presenting Tidewort to a fictional kombucha client, only to learn later that Tidewort is registered for tea. A quick knockout screen before the presentation, and a full search on the finalist the client picks, keeps that from happening. Your contract should also say who is responsible for clearance and whether your recommendation is a legal opinion. It usually shouldn't be. More on what a full search covers is in the article on searching before you file.

The classes

For the agency's own name:

  • Class 35 covers advertising and marketing. The international class list includes "advertising agency services," "marketing" and "advertising services to create brand identity for others." This is the core class for most agencies.
  • Class 42 covers design. The international list includes "graphic arts design," "logo design services," "website design consultancy" and packaging design. If you design logos, packaging or websites, file here as well.
  • Class 41 can come in if you sell workshops, courses or events under the agency name.

The USPTO base application fee is $350 per class. Most agencies need Class 35 and Class 42 together, because clients hire them for both.

For your own name, hire before the rebrand, the new site or the signage, and before you build case studies and press around the name. For client work, the time to fix assignment language is before the next project starts, in your freelancer agreements and your client agreements at once.

Seed is a $650 clearance search with a written opinion. Grove is $2,600: the search, the opinion and the federal application, with procedural Office Actions included. USPTO fees are separate, $350 per class.

You can see every flat fee on the all services page, and the FAQs page answers most of what comes up before a first conversation.

Questions about your name? Email us at hello@citrus.legal, or book a paid 30-minute consultation (opens in a new tab) for advice on your specific situation.

Sources

This article is general information, not legal advice. Reading it does not create an attorney-client relationship.

When you are ready to own it

One mark. One flat fee. One attorney.

The search, the written opinion, the federal application and procedural Office Actions, for $2,600 or three payments of $950. Nothing is filed until you approve the search. If I call your mark low risk and the USPTO refuses it, I file again at no attorney fee.

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