Atchuthan Sriskandarajah attorney
Atchuthan Sriskandarajah is a US-admitted attorney and the founder of Law Offices of SRIS, P.C., a firm practicing since 1997. Mr. Sriskandarajah is admitted to practice law in Virginia, Maryland, the District of Columbia, New Jersey, and New York. A former prosecutor, he advises on US brand protection and business entity formation matters. The firm’s brand and entity practice addresses the US legal needs of businesses and entrepreneurs, including trademark registration with the United States Patent and Trademark Office (USPTO), business entity structuring under state law, and cross-border document authentication under the 1961 Hague Apostille Convention. This page provides general information about US brand and entity law as it relates to cross-border matters.
US Trademark Registration and Brand Protection
A trademark registered with the United States Patent and Trademark Office provides nationwide priority and a legal presumption of ownership valid throughout the United States. Federal registration under the Lanham Act, 15 U.S.C. § 1051 et seq., confers several advantages over reliance on common law trademark rights alone. A registered mark appears on the USPTO’s Principal Register, which serves as constructive notice to the public of the registrant’s claim of ownership. This constructive notice eliminates a later user’s ability to claim good-faith adoption of a confusingly similar mark in a different geographic region. Registration also establishes a basis for obtaining trademark protection in foreign jurisdictions through the Madrid Protocol, to which both the United States and India are contracting parties. After five years of continuous use, a registered mark may become incontestable under 15 U.S.C. § 1065, subject to certain statutory defenses. The registration process involves a substantive examination by a USPTO examining attorney, who reviews the application for compliance with the Lanham Act’s requirements, including distinctiveness, likelihood of confusion with existing marks, and whether the mark is merely descriptive or generic.
For businesses based outside the United States, the USPTO permits foreign-domiciled applicants to file trademark applications directly, though the USPTO requires that a foreign applicant designate a US-licensed attorney for all trademark matters before the Office. This requirement, codified at 37 C.F.R. § 11.14, applies regardless of whether the applicant has previously filed through the Madrid Protocol or directly with the USPTO. The examination process follows the same substantive standards applied to domestic applicants. Common grounds for refusal include likelihood of confusion with a prior-registered mark under 15 U.S.C. § 1052(d), mere descriptiveness under § 1052(e), and failure to function as a trademark. A response to an Office Action must be filed within three months of the issuance date, with a single three-month extension available upon request and payment of the applicable fee. The trademark registration process typically spans several months from filing to registration, depending on the complexity of the application and any substantive refusals raised during examination.
Business Entity Formation in the United States
A non-US resident may form a limited liability company or corporation in any US state without a requirement of US citizenship or residency. Each state has its own business entity statute governing formation, internal affairs, and dissolution. The most common entity types for cross-border business ventures are the limited liability company (LLC) and the corporation, each offering distinct characteristics with respect to liability protection, management structure, and tax treatment. An LLC provides pass-through taxation by default while shielding members from personal liability for entity obligations. A corporation offers a familiar governance structure with shareholders, directors, and officers, and may elect S corporation status if all shareholders are US persons, or C corporation status otherwise. The choice between entity types involves analysis of the business’s operational needs, the jurisdictions in which it will operate, and the tax consequences in both the United States and the owner’s home jurisdiction.
Formation is accomplished by filing the organizing document — articles of organization for an LLC or articles of incorporation for a corporation — with the secretary of state or equivalent filing office in the chosen state of formation. The filing must include the entity name, which must be distinguishable from existing entities on the state’s registry, the name and address of the registered agent for service of process within the state, and certain other information that varies by state. After formation, the entity must obtain an Employer Identification Number from the Internal Revenue Service, which is required to open a US bank account and to comply with US tax filing obligations. Foreign-owned US entities may also have reporting obligations under the Corporate Transparency Act, which requires disclosure of beneficial ownership information to the Financial Crimes Enforcement Network. State-level annual report and franchise tax requirements apply and vary by jurisdiction.
Cross-Border Document Authentication Under the Hague Apostille Convention
India has been a contracting party to the 1961 Hague Apostille Convention since 14 July 2005, meaning that Indian public documents destined for use in the United States may be authenticated by apostille rather than by consular legalization. The 1961 Hague Apostille Convention simplifies the authentication of public documents for use across borders between contracting states. Under the Convention, a competent authority in the issuing country affixes an apostille — a standardized certificate — to the public document. Once apostilled, the document is entitled to recognition in any other contracting state without further authentication. For India, the Ministry of External Affairs serves as the central competent authority for issuing apostilles. Documents commonly requiring apostille in a business context include certificates of incorporation, board resolutions, powers of attorney, and trademark registration certificates. The apostille certifies the authenticity of the signature, the capacity in which the person signing the document acted, and the identity of any seal or stamp on the document. It does not certify the content of the underlying document.
For documents originating in the United States and destined for use in India, the apostille is issued by the secretary of state of the state in which the document was executed or notarized, or by the US Department of State for federal documents. The process typically involves notarization of the document, followed by submission to the appropriate state or federal apostille authority. Because both countries are Convention signatories, the apostille process replaces the multi-step chain-legalization procedure that would otherwise be required. Documents that are not public documents — such as private commercial contracts — may still require notarization and, depending on the receiving institution’s requirements, an apostille of the notarial certificate. The Convention does not apply to documents executed by diplomatic or consular agents, nor to administrative documents dealing directly with commercial or customs operations, which may be subject to separate authentication requirements.
Frequently Asked Questions
Can an Indian business register a trademark in the United States?
Yes, an Indian business may apply for and obtain a US trademark registration with the USPTO regardless of whether it has a physical presence in the United States. The application may be filed directly with the USPTO under Section 1(a) of the Lanham Act, 15 U.S.C. § 1051(a), if the mark is already in use in US commerce, or under Section 1(b) based on a bona fide intent to use the mark in US commerce. Alternatively, an Indian applicant may extend protection of an Indian trademark registration to the United States through the Madrid Protocol, using the Indian Trademarks Registry as the office of origin. Regardless of the filing basis, the USPTO requires all foreign-domiciled applicants to be represented by a US-licensed attorney. The substantive examination standards are the same as those applied to domestic applications. A registration on the Principal Register confers nationwide priority from the application filing date.
What types of business entities can a non-US resident form in the United States?
A non-US resident may form a limited liability company (LLC), a C corporation, or in certain states a limited partnership or limited liability partnership, without any requirement of US citizenship or residency. The LLC is a popular choice for cross-border ventures because it offers pass-through taxation, flexibility in management structure, and limited liability for members. A C corporation may be preferable where the business intends to seek venture capital investment or where the ownership structure is complex. An S corporation is generally unavailable to non-US residents because S corporation shareholders must be US citizens or resident aliens. Each state has its own formation statute; the choice of formation state involves consideration of the state’s corporate law, annual filing requirements, franchise taxes, and the business’s operational nexus with that state. Delaware, Virginia, and New York are common choices for cross-border entity formation.
How does the Hague Apostille Convention apply to business documents between India and the US?
Because both India and the United States are contracting parties to the 1961 Hague Apostille Convention, public documents from either country may be authenticated for use in the other by apostille rather than by consular legalization. India acceded to the Convention effective 14 July 2005. For an Indian business document — such as a certificate of incorporation, a board resolution, or a power of attorney — to be used in the United States, the document must be apostilled by the Indian Ministry of External Affairs or a designated branch secretariat. The apostille certifies the authenticity of the signature and seal on the document. Once apostilled, the document is generally accepted by US courts, banks, and government agencies without further authentication. The Convention does not eliminate the need for certified translations where the document is not in English; a separate certified translation may be required by the receiving institution.
Is a US-registered entity required for an Indian company to conduct business in the United States?
An Indian company is not categorically required to form a US-registered entity to conduct business in the United States, but doing so is often advisable for liability protection, tax clarity, and operational convenience. A foreign corporation may register to do business in a US state by obtaining a certificate of authority from the secretary of state, which subjects the foreign entity to the state’s jurisdiction and reporting requirements. However, operating through a US-registered subsidiary — typically an LLC or corporation — can simplify US tax compliance, shield the parent company from direct US liability exposure, and facilitate banking relationships, lease agreements, and employment arrangements. The determination depends on the nature and extent of the US activities, the applicable tax treaty between the United States and India, and the business’s long-term objectives. Activities that are merely incidental to international trade may not trigger a state’s registration requirement.
What is the difference between a US federal trademark registration and common law trademark rights?
Federal trademark registration with the USPTO confers nationwide priority and a legal presumption of validity, while common law trademark rights arise from actual use of a mark in commerce and are limited to the geographic area in which the mark has been used. Common law rights are established simply by using a mark in connection with goods or services in a particular geographic market. These rights permit the user to prevent later adopters from using a confusingly similar mark within that same geographic area. Federal registration under the Lanham Act provides significantly broader protection: constructive nationwide notice, the right to sue in federal court, a presumption of validity, and after five years the possibility of incontestability. For businesses operating across state lines or internationally, federal registration is the primary mechanism for securing brand protection throughout the United States. Common law rights remain relevant for marks used only locally or during the period before a federal registration issues.
How are foreign business entities recognized in US courts?
US courts generally recognize a foreign business entity’s legal existence and capacity under the law of the jurisdiction where the entity was formed, applying principles of comity and the internal affairs doctrine. The internal affairs doctrine provides that matters involving the internal governance of a business entity — such as the relationship among shareholders, directors, and officers — are governed by the law of the entity’s jurisdiction of formation. This means a US court will typically look to Indian company law to determine whether an Indian corporation validly exists, whether its board properly authorized a particular action, and whether its officers have authority to bind the entity. For purposes of bringing suit in a US court, a foreign entity generally has standing to sue and be sued. However, a foreign entity that is transacting business in a US state without having registered to do so may face limitations on its ability to maintain an action in that state’s courts until it qualifies to do business. The doctrine of lex loci celebrationis — which governs recognition of foreign marriages — is distinct from the internal affairs doctrine applicable to business entities.
What documents need authentication for an Indian business to open a US bank account?
US banks typically require an Indian business to provide an apostilled certificate of incorporation, an Employer Identification Number from the IRS, a board resolution authorizing the account opening, and identification documents for the authorized signatories. The certificate of incorporation must be apostilled by the Indian Ministry of External Affairs under the 1961 Hague Apostille Convention. The board resolution should identify the specific individuals authorized to open and operate the account and should also be apostilled or notarized as required by the bank. The entity must first obtain an EIN from the IRS by filing Form SS-4, which can be done by a responsible party with a valid taxpayer identification number. Individual signatories will need to provide government-issued identification, such as a passport. Some banks may also require a certificate of good standing from the Indian Registrar of Companies. Requirements vary by financial institution, and banks apply their own internal compliance policies in addition to federal know-your-customer regulations under the Bank Secrecy Act.