sriscounsel.com

sriscounsel.com is a legal resource published by Law Offices of SRIS, P.C., a US law firm practicing since 1997. This page addresses US brand and entity considerations for Indian businesses, entrepreneurs, and investors evaluating entry into the United States market. Brand and entity matters encompass two distinct but related areas: the formation of US business entities under state law and the protection of brand assets through federal trademark registration, trade name selection, and related intellectual property strategies. For an Indian enterprise, establishing a US presence involves navigating requirements under state corporate statutes and federal law — including — that differ materially from Indian company law under , and Indian trademark law under . The discussion that follows describes the US legal framework governing these topics as it applies to cross-border matters involving Indian parties.

US Brand and Entity Framework for Indian Cross-Border Matters

An Indian business or entrepreneur seeking a US presence typically encounters two legal workstreams. The first is entity formation: selecting and creating a US business structure under the law of a particular state. The most common choices for Indian founders are the limited liability company (LLC) and the C-corporation. An LLC offers pass-through taxation and operational flexibility, while a C-corporation is often preferred when the business anticipates venture capital investment or plans to issue equity to US-based employees. Each state has its own formation statute — are widely used — and formation requires filing a certificate of formation or articles of incorporation with the relevant secretary of state, designating a registered agent with a physical address in the state, and obtaining a federal employer identification number (EIN) from .

The second workstream is brand protection. A US trademark registration with confers nationwide priority and the right to use the registered mark in connection with the goods or services listed in the registration. Indian businesses that already hold a trademark registration in India may be able to claim priority in a US application under if the US application is filed within six months of the Indian filing. India is also a contracting party to , which permits an Indian trademark applicant to designate the United States in an international registration. A US trademark registration is distinct from a US trade name — a trade name is the name under which a business operates and is governed by state law, while a trademark identifies the source of goods or services and is governed by federal law. Both may require clearance searching to assess infringement risk before use in US commerce.

Frequently Asked Questions

What does brand and entity mean for an Indian business entering the US market?

Brand and entity refers to the two foundational legal steps for an Indian business establishing a US presence: forming a business entity under state law and protecting brand assets through federal trademark registration. Entity formation involves choosing a structure — typically an LLC or a C-corporation — and filing formation documents with a state’s secretary of state. Brand protection involves registering trademarks with to secure exclusive rights to a name, logo, or slogan in US commerce. These two components operate under distinct legal frameworks: state corporate law governs entities, while federal law under governs trademarks. An Indian business may need to address both workstreams concurrently when planning a US market entry.

What US entity types are available to Indian founders?

Indian founders may form a limited liability company (LLC), a C-corporation, or in limited circumstances other entity types under US state law; there is no US citizenship or residency requirement for LLC or C-corporation ownership. An LLC provides pass-through taxation — meaning the entity itself does not pay federal income tax — and flexible management structures. A C-corporation is a separate taxable entity but permits multiple classes of stock and is the standard structure for venture-backed companies. An S-corporation is generally unavailable to Indian founders because it requires all shareholders to be US citizens or resident aliens. The choice between LLC and C-corporation depends on the business’s funding strategy, tax profile, and long-term objectives.

Can an Indian private limited company form a US subsidiary?

Yes, an Indian private limited company may form a US subsidiary, typically as a C-corporation or LLC wholly owned by the Indian parent. The US subsidiary is a separate legal entity formed under the law of a chosen US state. The Indian parent company subscribes for shares or membership interests in the subsidiary and must comply with both Indian foreign exchange regulations under and US state corporate law. The subsidiary will need its own EIN, a US-registered agent, and a US business address. may affect how dividends, interest, and royalties paid by the US subsidiary to the Indian parent are taxed.

How does US trademark registration work for an Indian brand?

An Indian brand owner may apply for US trademark registration with either directly or through by designating the United States in an international registration. A direct US application may be based on actual use of the mark in US commerce or on a bona fide intent to use the mark. If the applicant holds an Indian trademark registration, it may claim priority under provided the US application is filed within six months of the Indian filing date. examines the application for distinctiveness and for conflicts with existing registered marks. Registration confers nationwide priority, the right to use the ® symbol, and the ability to enforce the mark in federal court.

What is the difference between a US trademark and a US trade name?

A US trademark identifies the source of goods or services and is governed by federal law under , while a trade name is the name under which a business operates and is governed by state law. Trademark rights arise from use in commerce and are strengthened by federal registration with . A trade name — sometimes called a doing-business-as or DBA name — is registered at the state or county level and does not by itself confer nationwide trademark rights. An Indian business operating in the US may use the same word as both its trade name and its trademark, but the legal protections differ. Clearance searching in both records and state trade-name registries is a standard step before adopting a name for US operations.

Is a US-registered agent required for an Indian-owned entity?

Yes, every US LLC and corporation must designate and maintain a registered agent with a physical street address in the state of formation. The registered agent receives service of process, official state correspondence, and tax notices on behalf of the entity. The agent may be an individual resident of the state or a commercial registered agent service. A post office box does not satisfy the physical-address requirement. The registered agent’s name and address appear in the public formation documents filed with the secretary of state. Failure to maintain a registered agent can result in administrative dissolution of the entity by the state.

What is an EIN and does an Indian-owned US entity need one?

An employer identification number (EIN) is a nine-digit federal tax identification number issued by , and every US entity with an Indian owner that has employees, files US tax returns, or opens a US bank account must obtain one. The EIN functions like a social security number for the business. A single-member LLC owned by an Indian individual that has no US employees and no US tax filing obligation may in some cases use the owner’s individual taxpayer identification number (ITIN) instead, but most Indian-owned entities obtain an EIN to open a US bank account and to establish a distinct tax identity. issues EINs to foreign-owned entities through its standard application process.

How does affect entity structuring?

allocates taxing rights between the two countries and may reduce withholding tax rates on dividends, interest, and royalties paid by a US entity to its Indian parent or owners. The DTAA contains limitation-on-benefits provisions that require the Indian recipient to meet certain ownership and base-erosion tests to qualify for treaty benefits. The treaty also provides a mechanism for resolving dual-residency disputes through the mutual agreement procedure. The specific treaty rate applicable to a given payment depends on the nature of the payment and the recipient’s treaty eligibility. Structuring decisions — such as whether to use an intermediate holding company in a third jurisdiction — may affect treaty access.

Can an Indian citizen serve as a director or manager of a US LLC?

Yes, an Indian citizen may serve as a director of a US corporation or as a manager of a US LLC; US corporate law does not impose citizenship or residency requirements for directors or managers. However, the practical ability to serve in these roles may be affected by US tax residency considerations. A director who participates in board meetings from India generally does not become a US tax resident solely by reason of the directorship. The director or manager should be aware of any US visa or travel documentation requirements if in-person attendance at US meetings is contemplated. The entity’s operating agreement or bylaws may specify qualifications for directors or managers beyond the statutory minimum.

What state is commonly chosen for US entity formation by Indian businesses?

Delaware is the most common state of formation for Indian businesses incorporating in the United States, due to its well-developed corporate law, specialized , and familiarity to international investors. offers flexibility in capital structure and governance, and its case law provides predictable legal standards for fiduciary duties and shareholder disputes. Other states, including New York, California, and Texas, are also used depending on the business’s physical presence and operational needs. A Delaware entity that conducts business in another state must typically qualify to do business in that state as a foreign entity. The choice of formation state is a legal decision that considers tax, governance, and operational factors.