How Do I Register my Clothing Line Trademark?

By Josh Gerben, Esq.

Registering a trademark for a clothing line or brand can be confusing for many people. There are a number of different factors like your company or brand name, logo, and the design of the clothing itself that may be treated differently under trademark law, depending on usage. Let’s examine what aspects of your company and your clothing line can be protected by filing for a trademark, and how you can go about doing so.

Remember: trademarks protect the identifying factors of a product, like brand name and logo, not the particulars of a product itself. Trademarks exist chiefly to prevent confusion among similar offerings due to similar names. Other aspects of your clothing like design and functionality may, in limited cases, be subject to protections under copyright and patent law, respectively, which we will discuss later, but your major concern – and where you’ll be afforded the most legal protection – is in the area of a trademark for the name of your clothing line (and logo, if you have one).

Items to consider prior to beginning the process of filing a trademark for your brand of clothing:

Before you begin the process of registering a trademark for your clothing line, you need to make sure of a few things. First, your name and logo should be unique. Not only does that mean that they’re distinguishable from any other existing trademarks – it also means that they need to be distinguishable from any commonplace words, phrases, or designs. In other words, there needs to be a degree of originality and creativity – not merely a descriptive or generic term.

Second, your name and/or logo need to be established and “in use” at the time that you apply for a registered trademark. If not, you’ll need to file your application as an “intent to use,” application, which will provide you with federal priority on the trademark while you establish your clothing line’s “use in commerce” – meaning you begin to design, produce, and sell your clothing. “Intent to use” trademark applications require a second “proof of use” filing within 12 months of the initial filing, showing that you’ve fulfilled those requirements.

Trademark registration process for a clothing brand:

Once you’ve designed and begun using your mark, you can start the official registration process. That starts with a comprehensive review of existing registered trademarks and other companies in your industry to ensure that your brand, your name, and your logo aren’t already established and/or registered by another party. It’s best to have an attorney perform the search, since search engines and basic trademark search tools (like the one provided by the United States Patent and Trademark Office) will rarely turn up similar names, alternate spellings, and other instances that might lead to the rejection of your trademark application. Getting the review stage right is critical, since if you do happen to infringe on an existing mark, you’ll be forced to abandon your brand-building work and start over from square one. 

When you’re confident that your company constitutes the first and only use of your mark, you can then submit a trademark application through the USPTO. For a clothing line, the application will have several components, consisting primarily of the necessary paperwork, and what’s known as a “specimen” of the trademark as it’s used on your apparel. The specimen requirement can be confusing – let’s look into it a bit further.

Key factors in the US government review of a trademark filing for a clothing line:

A key factor in determining the viability of your clothing line’s name and logo lies in the difference between use as a mark – that is, as a readily identifiable indicator of your brand – and “ornamental” use – meaning that it’s seen as a design element because the trademark only appears on the chest of a t-shirt, for instance.

In order to avoid an ornamental refusal for your clothing brand trademark, it is important to follow the USPTO guidelines for proper use of a clothing trademark.  The USPTO requires that a trademark for a brand of clothing appears on a tag attached to the clothing (a neck tag, hang tag or price tag).  If the trademark does not appear on the tag for your clothing, any trademark application will likely be refused for being too ornamental.

What is protected by a trademark for a brand of clothing?

Finally, let’s clear up some questions about what aspects of your clothing brand are not covered by trademark law – the design aspects. In nearly all cases, patterns, styles, and the general look of clothing aren’t subject to intellectual property protection. That fact is the basis for the “knock-off” garment and accessory industry. If you have a particular design or image that you use on an article of clothing, that creative work – not the garment itself – is protected under copyright law. Unlicensed use of a copyrighted work – on a t-shirt, for instance, or anywhere else – can be stopped. But remember – it’s the original work itself that’s covered, not the clothing it appears on.

If you’ve created a new, functional design – a unique handbag, for instance – in some cases, you can apply for a patent to protect it. It’s typically difficult to gain those patents, though, as the utility of the design must be proven in order to qualify. In other words, function, not form, is what matters. The patent process is also even lengthier than the trademark application process and can take several years to complete.

So remember: uniqueness and usage are the key factors when you’re registering a trademark for your clothing line, as well as navigating the application and specimen examples required by the USPTO.

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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.