Are you starting a clothing line, perhaps a line of t-shirts, fitness apparel or sportswear? Here’s what you need to know – the ABCs of trademarking clothing and how to properly protect your brand name and concept with the U.S. Patent and Trademark Office (USPTO) or otherwise.
A – ACTUALLY SERVES AS A TRADEMARK
First, ensure your design or slogan actually serves as a trademark, and is not merely decorative or ornamental. Quite a few clients come to us seeking to trademark a slogan or design that will be printed on the fronts of t-shirts. While these slogans may also serve as trademarks, the client is usually using them in a manner that is decorative or ornamental and does not meet the requirements of a trademark eligible for registration with the USPTO. In order to qualify for trademark registration and protection, the name, slogan or design must serve to uniquely identify your goods or services in the marketplace. Your trademark name, logo or slogan is an indicator of source. It lets consumers know you are the source, or manufacturer, of that particular line of t-shirts, sportswear or footwear.
Slogans or designs can serve as trademarks when the trademark owner actively builds the slogan or design into their branding and marketing campaigns such that it becomes inseparable from the primary brand name. A very popular example is NIKE, which owns the trademarked slogan JUST DO IT and the SWOOSH logo design, among others. Both of these trademarks often appear on NIKE t-shirts. In this sense, the slogan JUST DO IT and the SWOOSH design are not purely decorative, they also serve to identify the NIKE brand. When you see either of those indicators, you know it’s a NIKE product. This has come from years of NIKE building brand recognition into both the JUST DO IT slogan and the SWOOSH design.
If you plan to sell a line of t-shirts that say “HAVE A NICE DAY,” would the average consumer in the marketplace know who makes those t-shirts? Probably not. Now, if your brand is also “HAVE A NICE DAY” or if you’ve integrated “HAVE A NICE DAY” into your branding and marketing efforts, then you should definitely try to register that slogan as a trademark for your clothing line. As the NIKE example shows, this doesn’t just apply to slogans, it also includes words, letters and/or designs.
So what’s the distinction between decorative designs and indicators of source?
B – BRAND YOUR ITEMS
When you walk into a store to buy something, what’s the first thing you do when you spot something you like? You look at the tag. You’re looking to see who makes it, is it your size, and how much it costs. That’s what the USPTO is looking for as an indicator of source with clothing trademarks. Your trademark application will most likely be rejected if you submit an image just showing a name, slogan or design on the front of a shirt. The USPTO wants to see that name, slogan or design used in the manner that trademarks are used in connection with clothing and apparel to indicate source – on the tag in the back of the shirt neckline or in the trouser waistband, for example. Or on the hanging tag that usually gives you all the pertinent information – maker/brand name, size and price.
So if you’re starting a clothing line, particularly a line of t-shirts, ensure that you are using your proposed name, design or slogan in a manner that qualifies it for trademarking. If you have many different slogans or designs on the fronts of t-shirts, consider which one, if any, you want to use as your trademark name. Of course, you could have a trademark brand name that is something completely different than any of the slogans or designs used on your goods.
C – CONSIDER COPYRIGHT PROTECTION
As for obtaining protection for those slogans or designs that you’re NOT using as a trademark? You may be able to obtain copyright protection for an original design, image or photograph that is used in a decorative manner on your clothing. Copyright protection is not an option for the clothing article itself, but for the design or photo you created. As for slogans, your best bet is to be the first to market before your competitors have time to catch up.
So there you have it, the ABCs of trademarking a clothing line. There are other aspects of the trademark process to consider, of course, but these considerations often arise in the clothing and apparel industry. Please contact one of our trademark attorneys for a complimentary consultation regarding your specific trademark concerns, email us at info@FlatFeeTrademark.com or call (800) 769-7790. We’re always happy to hear from you!
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