sris counsel
This page provides general information about US brand and entity matters for Indian businesses and individuals. It is prepared by Atchuthan Sriskandarajah, Esq., a US-licensed attorney and founder of Law Offices of SRIS, P.C., a US law firm with an international clientele. The content addresses US law aspects of forming business entities, protecting trademarks, and managing brand assets when Indian parties engage with the US market. Indian law questions require separate counsel admitted by the Bar Council of India. The information is educational and does not constitute legal advice or representation under Indian law.
US Brand and Entity Matters for Indian Businesses and Individuals
Indian entrepreneurs, companies, and professionals expanding into the United States often need to establish a US legal presence and protect their brand identity. Under US law, a business entity—such as a limited liability company (LLC) or a corporation—can be formed in any state, with Delaware, Virginia, and New York being common choices. The entity provides limited liability, facilitates US banking and contracts, and may be required for certain visa categories. Separately, US trademark registration with the United States Patent and Trademark Office (USPTO) secures exclusive rights to a brand name, logo, or slogan in US commerce, independent of any Indian trademark registration. The two processes are distinct but often pursued together when entering the US market.
For Indian parties, the US entity formation process involves selecting a state of incorporation, filing articles of organization or incorporation, appointing a registered agent, and obtaining an Employer Identification Number (EIN) from the Internal Revenue Service. Ongoing compliance includes annual reports and franchise taxes. Trademark protection requires a search for conflicting marks, filing an application under the appropriate basis (use in commerce or intent-to-use), and responding to USPTO office actions. Because US trademark rights are based on use in commerce, early and proper use of the mark in the US is critical. Indian businesses should also consider domain name registration and brand enforcement strategies under US law, including the Anticybersquatting Consumer Protection Act.
Frequently Asked Questions
What is the difference between a US LLC and a corporation for an Indian founder?
A US LLC offers pass-through taxation and flexible management, while a corporation provides a familiar share structure and may be preferred for venture capital investment. An LLC is often simpler for a single Indian founder, with profits taxed only at the member level. A C-corporation is a separate taxable entity but allows multiple classes of stock, which investors typically require. The choice depends on funding plans, US tax treaty considerations, and long-term goals. Both entity types limit personal liability and can be owned by Indian nationals without US residency.
Can an Indian citizen form a US company without a US partner?
Yes, an Indian citizen can be the sole owner of a US LLC or corporation; US law does not require a US citizen or resident partner. The owner must obtain an EIN, which can be done online, and appoint a registered agent with a physical address in the state of formation. There is no requirement for a US-based director or manager, though having a US address for service of process is mandatory. The owner’s Indian citizenship does not restrict ownership, but tax and visa implications should be reviewed separately.
How does US trademark registration protect an Indian brand?
US trademark registration gives the owner the exclusive right to use the mark in US commerce and the ability to enforce it in federal court. Registration creates a public record of ownership, serves as a basis for foreign registrations, and can be recorded with US Customs to block infringing imports. For an Indian brand, a US registration is independent of any Indian trademark; it protects the mark only within the United States. The application must specify the goods or services and a filing basis, such as actual use in US commerce or a bona fide intent to use.
What is a “doing business as” (DBA) name and do I need one?
A DBA allows a business to operate under a name different from its legal entity name; it is often used for branding purposes. For example, an LLC named “ABC Holdings LLC” could file a DBA to transact business as “ABC Technologies.” DBAs are filed at the state or county level and do not create a separate legal entity. They are useful for Indian businesses that want a US-facing brand name without forming a new entity, but they do not provide trademark rights—only a trademark registration does that.
Do I need a US entity to register a US trademark?
No, a foreign individual or business can apply for a US trademark directly without a US entity. The applicant must provide a domicile address, which can be outside the US, but must designate a US-licensed attorney for the application. The mark must be used in US commerce or the applicant must have a bona fide intent to use it. Many Indian businesses first file an intent-to-use application and later form a US entity to put the mark into use.
What ongoing compliance is required for a US company owned by an Indian resident?
Annual or biennial reports, franchise taxes, and federal tax filings are typical, even if the company has no US operations. Most states require an annual report updating the company’s address and registered agent. Delaware imposes an annual franchise tax; Virginia requires an annual report and a registration fee. The company must also file a US federal tax return, and if it has US-source income, it may need to pay taxes. Failure to comply can lead to administrative dissolution, so maintaining a reliable registered agent and calendar is essential.
How does the US-India tax treaty affect a US entity owned by an Indian resident?
The treaty can reduce withholding tax on dividends, interest, and royalties, and may prevent double taxation. The US-India Income Tax Treaty provides reduced rates for certain payments from the US entity to the Indian owner. For example, dividends may be taxed at 15% or 25% depending on ownership percentage, rather than the default 30%. The treaty also includes a limitation on benefits clause to prevent treaty shopping. Proper structuring and documentation are necessary to claim treaty benefits.
Can a US trademark be enforced against an Indian company selling in the US?
Yes, a US trademark registration can be enforced against any party using a confusingly similar mark in US commerce, regardless of the infringer’s location. Remedies include injunctions, damages, and seizure of infringing goods. If the Indian company sells through US-based e-commerce platforms, the trademark owner can use the platform’s takedown procedures. For counterfeit goods, US Customs and Border Protection can detain shipments based on a recorded trademark registration.
What is the difference between a trademark and a service mark?
A trademark identifies goods, while a service mark identifies services; both are protected under the same US federal law. The Lanham Act governs both. The application process is identical, and the term “trademark” is often used generically to cover both. For an Indian IT services company, a service mark would protect the brand name under which the services are offered in the US. The mark must be used in connection with the services in US commerce to maintain registration.
Is a US entity required for an E-2 treaty investor visa?
Yes, the E-2 visa requires the applicant to have invested in a US enterprise, which is typically a US entity. The enterprise must be a real, operating business, not a passive investment. The Indian national must own at least 50% of the enterprise or have operational control. The investment must be substantial and at risk. Forming a US LLC or corporation is the usual first step, followed by the visa application at a US consulate in India.
How long does US trademark registration take?
The process typically takes 8 to 12 months from filing to registration, assuming no significant office actions or oppositions. After filing, the USPTO assigns an examining attorney, who reviews the application for substantive and procedural issues. If the examining attorney issues an office action, the applicant has six months to respond. Once approved, the mark is published for opposition for 30 days. If no opposition is filed, a registration certificate issues for use-based applications; intent-to-use applications receive a notice of allowance and require a statement of use later.
What is the role of a registered agent for a US company?
A registered agent receives legal and tax documents on behalf of the company and must have a physical address in the state of formation. The agent accepts service of process, annual report notices, and other official correspondence. For an Indian-owned company with no US office, a commercial registered agent service is essential. The agent’s address is publicly listed, and failure to maintain a registered agent can result in the company losing good standing.
About Mr. Sris
Atchuthan Sriskandarajah, Esq. is the founder of Law Offices of SRIS, P.C., a US law firm practicing since 1997. He is admitted to the bars of Virginia, Maryland, the District of Columbia, New Jersey, and New York. Mr. Sriskandarajah has prepared this information as part of the firm’s knowledge resource on US brand and entity matters for Indian parties. The firm’s US-licensed attorneys assist with entity formation, trademark registration, and brand protection under US law. For Indian law questions, separate counsel admitted by the Bar Council of India should be consulted.