How to Trademark Clothing
How to Trademark Clothing is part of our How to Trademark series.
Some of the most famous trademarks in the world are clothing brands. These are also some of the most heavily advertised trademarks. For clothing, developing a brand is extremely important and thus trademark protection is a priority.
Trademark a Clothing Line
It is also extremely important to trademark fashion-related items because clothing and clothing accessories are the number one most counterfeited class of items around the world. It’s estimated that “fake fashion” is a $450 Billion worldwide industry. That’s taking billions directly from the pockets of trademark owners, designers, and industry professionals fighting to bring consumers quality fashion. In the fashion industry some of the leading victims of counterfeiting are:
- North Face
- Louis Vuitton
- Tiffany & Co.
- Abercrombie & Fitch
Registering your clothing’s trademark with the United States Patent and Trademark Office (USPTO) provides a myriad of legal benefits. However, not every clothing brand qualifies for federal trademark protection.
Trademarks are symbols, words, phrases, or a combination thereof used on your clothing to distinguish it from a competitor’s product. Trademarks do not expire (if periodically renewed), but they must be actively enforced. So if you notice an infringement of your trademark, you must take action to end it or otherwise you may lose trademark rights.
How to Trademark a Brand of Clothing
Before investing significant funds in manufacturing and design, you should have a trademark professional conduct a trademark search for similar trademarks. This is done through the USPTO database to ensure that the trademark is distinctive enough from other registered trademarks in your industry to avoid consumer confusion. Every registered trademark is coded and searchable based on its primary characteristics, including:
Trademarks without words, such as symbols, are assigned a number corresponding to each aspect of the design.
Fashion companies should also consider registering their trademark in the following categories of services:
- Advertising and Business in Class 35
- Education and Entertainment in Class 41
- Beauty products in Class 3
If you have a good-faith intent to expand your brand into related industries, you should file in those classes as well.
Selecting a Filing Basis
Provided your trademark is distinctive and you’ve selected a class or classes, you must choose one of several filing bases when submitting your application:
- Actual use in commerce – This is the basis if the trademark is in current use on clothing to identify and distinguish your brand.
- Intent to use in commerce – This is the correct basis if you plan to use the trademark in the future. You should have some supporting documentation just in case someone disputes your claim.
- General Foreign Registration & Foreign Priority Applications – For companies with active clothing trademarks outside of the United States.
- Madrid Protocol Applications – A reciprocity-based system that simplifies the multi-jurisdictional trademark application process.
Ninety percent of applications are actual use or intent to use applications. However, clothing companies should pay particular attention to the Madrid Protocol due to the prevalence of overseas manufacturing and counterfeiting of fashion items.
The Madrid Protocol allows trademark owners to submit a single trademark application to a selection of over one hundred nations. Clothing brands should apply for registration in every nation where their products are sold, marketed, and manufactured.
Filing a Trademark Application for Clothing
After conducting a trademark search, choosing your trademark class, and gathering supporting documentation, you are ready to submit an application. Government filing fees range from $250 to $400 for each class, depending on your application requirements. We typically utilize the $250 filing fee which means your application may cost $950 if your brand is filed in the three classes covering clothing, jewelry, and fabrics.
Within 4 months of filing, an examining attorney for the USPTO typically reviews your application for completeness and determines whether your trademark is registrable. This includes ensuring its use won’t cause market confusion. If the trademark is cleared, your trademark will register. If not, you’ll be sent a notice requesting additional documentation, argument, and support. The overall process can take anywhere from 8 months to a few years, depending on the nature of your case.
Does your Clothing Brand Need a Trademark, Copyright, or Patent?
Designers are visionaries, and as such, clothing often totes the line between functionality and art. Some designers are even inventors, and clothing is used to cool you, keep you warm, maximize performance, and increase comfort. As such, each type of intellectual property protection afforded by United States law may benefit clothing companies. These include trademark, copyright, and patent protections. Understanding the differences between the three can maximize the value of your clothing brand.
The specific design of certain shoes or clothing or the invention of a useful fabric or cloth or manufacturing process may be patentable. Clothing companies specializing in athletic and outdoor gear often have patented clothing products. If you think you may have a novel invention, you should seek the advice of a patent attorney immediately since disclosing it to any third party or failing to file immediately could lead to the loss of rights.
Copyrights protect original works of authorship once they are set in a tangible medium such as fabric. Copyright rights arise automatically, but copyright registration provides significant benefits in the event of an infringement so it is highly advised. It’s important to distinguish between copyrights and trademarks in the fashion industry. Printed tees, unique dress designs, and exclusive patterns are often copyrightable forms of art. They are not, however, trademarks unless also used to distinguish your products. For example, a hand-designed logo that appears on all your clothing may be both a trademark and a copyright, but a single printed-tee design is not a trademark.
Distinguishing Common Law and Registered Trademarks
Common law trademark rights may be created when a trademark is first used even without registration. If you are using a trademark that you have not yet registered you should use the ™ symbol. There are limited geographical protections available for infringement of an unregistered trademark. Sometimes small businesses rely on common law trademark protection and think it is sufficient, but national and international brands should always register their trademarks federally.
If you are looking to trademark clothing and need assistance, please contact us today.