How to Trademark a Clothing Brand – 5 Things to Know

There’s a lot of information floating around the internet about how to trademark the name of a clothing brand.

I wrote this article to cut through the clutter and provide you with the five most critical things you should know when seeking trademark protection.

Ultimately, the value of most clothing brands is completely tied to your main brand elements such as a name, slogan, and logo. Obtaining a trademark registration on these elements is key to building value into the brand you are creating and protecting your company from knock-offs in the future.

So let’s get started!

1. Selecting a unique brand name is incredibly important

It is important to select a unique name for your clothing brand.

The name must be unique, creative, and original. It also must not be too similar to an already existing trademark.

If the name you select is similar to another trademark, that can cause legal issues and ultimately lead to the need for a rebrand in the future.

One way to create a unique name is to consider a mutation of a word that already exists. For example, the shoe company “Zappos” took the Spanish word “Zapatos” and modified it for their own use. It is interesting to note that “Zapatos” would likely have been rejected for being too generic (as it translates to “shoes” in Spanish). However, by changing the word slightly, the footwear brand was able to be federally registered as a trademark.

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It is also a good idea to combine two existing words to create a unique trademark. Microsoft is an example of this. Its name is a combination of the words “microcomputer” and “software.” Instagram is another example. It combined “Instant” with the word “Telegram” to create an original trademark.

Finally, a unique name can be created by combining two words into a phrase. For example, Under Armour and New Balance are two clothing brands that did this to form an original trademark.

These are just a few ways to create an original trademark. If you are wondering if your trademark is unique enough to protect, feel free to fill out a contact form to get a consultation with one of our trademark attorneys.

2. File your clothing brand’s trademark as soon as possible

It is important to file your trademark as early as possible. The registration process can take a while, but it is also important to establish trademark priority.

Trademark priority is an important thing to consider when filing your clothing trademark.      

The best way to establish trademark priority is simple: file your trademark application as early as possible. Even if you aren’t currently using your trademark, the application can be filed on an “intent-to-use” basis. This allows the filing date to act as an earlier priority date, which helps establish the trademark rights over anyone else that may try to use your name, logo, or slogan    

The filing date of a trademark application (presuming the trademark is ultimately approved) provides you with a federal priority date all 50 states and US territories. For example, if you file your trademark application even a few days before another company, you can have the right to use the name and the other company will have to change its name.

3. Know the different types of trademarks you can protect

A trademark is a clear indicator of the source of a product or a service. A clothing brand has three key types of trademarks.

They are:

  • a name.
  • a logo.
  • a slogan.

It is important to first file the “plain text” of the company name. Filing just the name gives your clothing brand rights regardless of any logo or slogan you also may want to create. It is also a good idea to file several different trademark applications to protect various assets of a brand.

Let’s look at Nike, for example.

Nike has filed various trademarks for its brand, but one of its most memorable trademarks isn’t its name. It’s the company’s “Just Do It” slogan. Another trademark the apparel company sought federal registration for was its iconic “swoosh” logo. This logo appears on many of the brand’s items and has become one of the most recognizable logos in the world today.

Nike’s trademark portfolio is a classic example of a very sophisticated legal approach to trademark protection. By having trademarks registered on each individual part of the overall brand, Nike’s ability to enforce its trademark rights against infringers is stronger.

Outside of enforcement reasons, it is a good idea to investigate having multiple trademarks for your clothing brand. It is considered good legal hygiene. If you ever look to sell your business, any potential buyer will conduct “due diligence” on your trademark portfolio and will be much happier to see a portfolio with many different trademark registrations.

4. The trademark registration process can take over 10 months

It is important to file your trademark application as soon as possible. You may be thinking that you will get your trademark in a couple of days, and you can soon be on your way to securing your registration.

That, unfortunately, isn’t the case.

The United States Patent and Trademark Office processes over 600,000 applications per year. It will take time for an examining attorney to go over the application for your clothing brand. This can take up to 10 months.

An examining attorney is going to run their own trademark search to see if your trademark is too similar to any existing ones. To avoid a refusal by an examining attorney, you should consider hiring a trademark attorney to run a search on your trademark prior to filing. A trademark law firm (such as ours) will run a search that is very similar to what the USPTO’s examiner will run. This process can give you a good indication of the likelihood that your trademark will be accepted before you file an application.

If the trademark is approved by the USPTO, it then goes into a 30-day publication period, which is a period for public opposition. This does NOT mean you’re in the clear. It just means any member of the public who feels like they may be harmed by your trademark may oppose it.

After your trademark makes it through the 30-day publication period, it is once again returned to the examining attorney for review. The examiner will review your application again and they will either issue a Certificate of Registration or a Notice of Allowance, depending on your filing basis.

If you filed your clothing brand’s trademark application on an “intent-to-use” basis, the USPTO will issue a Notice of Allowance, for you to prove bona-fide use of your trademark in commerce. To do this, you will file a Statement of Use and must include a specimen – or example of how your clothing brand is using the trademark.

Remember, a clothing brand trademark is a method of identifying the source of your product, and needs to be displayed on a tag or attachment of some type to your product – like a brand label or hang tag.

The use of your logo as a decorative element (or the design) on a piece of clothing itself is not enough to qualify as use of a trademark. This type of use is considered “ornamental” by the USPTO and will be rejected if you don’t submit another way of identifying your clothing product.

Prior to your trademark’s approval, you should use your mark in conjunction with the small “TM” (™) symbol, serving as notice of your claim to the mark – but indicating that it’s not registered with the USPTO yet. Once your application is approved, you’ll then use the circled “R” (®) symbol to indicate registration. It’s important to use your mark properly to prevent challenges and cancellation after approval.

5. Obtaining a trademark registration protects your clothing brand for the long term

It is important to protect your clothing brand from competitors. Securing a trademark is your best bet to protect your brand from infringement. If you register your trademark, and anyone tries to infringe on your materials, you have grounds to act against them.

However, this can only happen if you register your trademark. This happens a lot in the world of clothing brands. Take Under Armour, for example. In January 2023, Under Armour won a case against women’s brand Armorina for trademark infringement. A court ruled that Armorina sounded too similar to Under Armour and that customers could potentially confuse the two brands.

While a jury found Armorina was infringing on the Under Armour trademark, the infringement was not found to be willful. This meant that the jury awarded Under Armour only $1 in damages for infringement and another $1 for dilution. However, as Under Armour successfully proved Armorina was infringing, due to the similarities of their name, Armorina will need to change its name.

Policing a trademark is not typically about the money. Damages in a trademark infringement lawsuit are hard to win.

Even Under Armour’s lawyer, Douglass Rettew, made it clear that Under Armour did not bring the case to court for damages. “This decision was made to emphasize that Under Armour was not trying to put the defendant out of business, but just to protect its trademark rights and guard the public from deception,” Rettew told Law360.

By winning this case, Under Armour added to its ability to police its trademark (the more court wins the better). Also, a company defending its own trademarks shows the TTAB and other courts that it has established trademark rights, which it will continue to defend.

It is interesting to note that this ruling will not shut Armorina down completely. The company will still be able to sell clothing, albeit under a different name (which was not known as of the court ruling).

However, there is a very important takeaway from this case: Choosing a name that was similar to an already existing company resulted in a costly and time-consuming court battle. Not to mention the cost and time to find a new name for the clothing brand.

Final Thoughts

I hope you enjoyed this article about how to protect your clothing brand with a trademark. As you can see, registering a trademark helps you build up a strong brand identity. This helps you stand out in an incredibly high-paced industry. When your clothing has a trademark that consumers can identify, it builds your brand identity, and will help you expand your brand.

Moreover, after your trademark is registered, be sure to have an effective trademark monitoring and enforcement plan in place, to ensure that no other business is using your mark, or one similar to it. A federal registration can assist you with putting a stop to infringement, but it’s your responsibility to stay aware of any such cases.

Josh Gerben, Esq.

Josh Gerben, Esq. is the founder and principal of Gerben IP. In 2008, Mr. Gerben started the firm to provide high-quality trademark services at reasonable prices. Today, he is recognized by the World Trademark Review as a top trademark filer, having registered over 7,500 trademarks. The contents of this blog are for informational purposes only and may not be relied on as legal advice.

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