How Do I Trademark a Clothing Brand?

Why protect your clothing brand

In a flooded and fast-paced market, the longevity of a clothing brand often depends on its reputation just as much as the quality and design of its clothes. Trademarks and other forms of intellectual property (IP) protection preserve brand recognition by combating infringement. In this way, trademark rights discourage companies in the same industry from profiting off an existing design and introducing confusion into the market place that could negatively impact your brand.

Copyright, patent, and trademark registration each offer ways to safeguard different elements of a clothing company. However, trademark tends to be the most common because it covers a wider range of legal protection for fashion products, which can be particularly difficult to defend due to their functional purpose. Understanding how these forms of IP differ and why will offer your brand the best opportunity for protection. 

Copyrighting clothing

Fast fashion, the escalating climate crisis, and rapid technological advancements have fueled an ongoing debate on the need for stronger copyright laws in the fashion industry. However, current regulations are still limited. "Congress has denied copyright protection for clothing design because it views clothing as useful articles and not artistic creations," says Biana Borukhovich, a New York-based fashion attorney.

"Generally, copyright protection is not available for the fashion industry in the U.S.," she adds. "However, there are a few exceptions of when a fashion designer can apply for copyright protection." For example, a sketch of your designs, artwork printed on clothes, and textile design may be available for copyright protection if it contains enough original creative expression. 

"Copyright registration for clothing generally falls within two- or three-dimensional artwork directed to the artistic features of the clothing," says Darrell Mottley. Mottley is an experienced trademark attorney with intellectual property law firm Banner Witcoff who’s based in Boston and Washington, D.C. "While useful articles as such are not copyrightable,” he says, “if an artistic feature would have been copyrightable as a standalone pictorial, graphic, or sculptural work, it is copyrightable," In other words, a design element that can be isolated from the garment may be copyrightable even if the garment itself isn't.

To register a copyright, you need to file a single-work or multiple-work application with the U.S. Copyright Office. For two- or three-dimensional works, apply online by making an account or work with a legal service, such as LegalZoom, and have them register for you. The process typically takes about 1 to 3 months and the copyright office filing fee can cost anywhere from $45 to $500, depending on how many works you're registering and how many people contributed. LegalZoom can file for you, and our service is $140 + filing fees.

You’ll receive an email notification once the Copyright Office receives your application along with images of your work. They’ll evaluate whether or not it’s eligible for copyright and either send you a certificate or a letter stating that your registration was rejected and why.

“To determine eligibility, the U.S. Copyright Office will review the clothing,” Mottley says. "To access originality, first, the pictorial, graphic, or sculptural features must have been independently created by the designer," he explains. "Second, the pictorial, graphic, or sculptural features must possess sufficient creativity. The lack of originality is where recent copyright registrations for clothing have been refused by the Copyright Office. Careful consideration and review of the clothing line should be conducted before seeking a copyright registration."

In addition, sketches of your designs are eligible for a copyright, but the process protects just the picture and not the idea, Borukhovich adds. For this reason, copyright leaves room for imitations that are similar to your designs but not exact to avoid infringement rulings. 

Design patents for clothing

Another form of protection for clothing designers is a design patent. Namely, a design patent pertains to a new product's non-functional appearance, such as its shape, size, composition, color, and details. If your clothing products have a unique feature that's considered purely ornamental, you can pursue this avenue.

"Unlike utility patents, design patents are directed to the aesthetic appearance of clothing designs and are not subject to the same rules as copyright," Mottley says. "Design patents are important tools in protecting against clone and simulation-type products made by third parties."

According to the United States Patent and Trademark Office (USPTO), design patents filed on or after May 13, 2015, have a limited 15-year term from issuance before their protection expires. Because of this limit and the amount of time and money it takes to acquire one, design patents were previously an uncommon choice for clothing companies. However, they're becoming more popular in response to the increasing prevalence of knock-off brands. 

Trade dress is a similar form of intellectual property that's more common among clothing businesses. Trade dress also protects a product's look and feel, including its nonfunctional design and shape. However, to obtain trade dress protection, your product needs to prove that its aesthetic is distinct and demonstrate that it's uniquely associated with your brand. 

How to trademark a clothing brand

If a copyright or design patent is not available, "Designers can trademark their brand names and logos in order for their goods to be differentiated by the consumer," Borukhovich says.

"Trademarks are words, names, symbols or devices, packaging design, and pictures that identify and distinguish the designer clothing," Mottley notes. Trademarks are the most common form of intellectual property protection in the fashion industry.

"It's important to obtain intellectual property protection early on because if the brand name or logo is similar to that of another [trademark owner], the brand owner will need to rebrand or [face possible liability], which can potentially turn into an expensive legal lesson," Borukhovich adds.

Generally, you can obtain a trademark by following these five steps.

Step 1: Conduct a trademark search

To obtain trademark protection, your name, logo, or product design needs to be unique and distinctive. "The designer needs to carefully consider if the word or name is being used properly to qualify for a trademark or if their trademark is not confusingly similar to preexisting trademarks," Mottley says. "It's helpful to have a trademark search and [attorney feedback]before filing a trademark application." LegalZoom offers a number of comprehensive trademark search services that can help you get started.

To trademark your brand name and logo, start by searching online to make sure no one else is using the name you've chosen. You can streamline the process with services like LegalZoom and the U.S. Patent and Trademark Office website.

If there's an existing trademark, you may need to create a new one and conduct another search, so it might be helpful to have a handful of clothing name options before searching. Next, develop a unique brand logo that uses the name and incorporates a unique combination of design, font, size, and color.

To help ensure the USPTO accepts your trademark, avoid the following:

• Generic names or descriptions of your goods and services
• Common informative phrases or slogans
• Lone surnames  

Keep in mind that clothing brand trademarks aren't limited to brand names, slogans, and logos. As mentioned, trade dress is a vital source of protection for specific designs within a brand's own clothing line. The dispute between Nike vs. The Bathing Ape over Nike's trademarked sneaker designs is one example.  

Step 2: Choose the appropriate trademark class

The USPTO has 45 trademark classes that it uses to organize applications, assess fees, and streamline searches for registered and pending trademarks. These classes are separated by broad categories of goods and services.

It's very important to select the correct class to prevent delays in your application process, ensure accurate legal protection, and avoid unnecessary filing fees. While clothing businesses typically fall under Class 25, you may want to consider multiple trademark classes if you plan to expand into other product lines in the future.

Class 25 includes:

• Clothing
• Footwear
• Headgear

It's important to note that clothing brands with specialized services may need to register multiple classes. Clothing trademarks can become complicated, so it may be a good idea to consult with an attorney or experienced legal service.

Step 3: Prepare and submit the trademark application

Next, file an application for the trademark with the U.S. Patent and Trademark Office (USPTO), which entails completing a form, paying a fee, and waiting up to six months. A USPTO attorney will review the application and approve or refuse its registration. If approved, no one else can use that name or design. One of the most common reasons a trademark is denied is because the mark looks or sounds similar to another registered trademark.

To help ensure the USPTO accepts your trademark, avoid the following:

• Confusingly similar trademarks
• Generic names or descriptions of your goods and services
• Common informative phrases or slogans
• Lone surnames

Before filing, it's helpful to gather everything you'll need. First, you need to include a clear drawing of the trademark you want to register in your application. Choose between the following formats:

1. Standard character drawing. Solely for words, slogans, and letters without stylization or design. It offers broad protection without limiting the trademark to a specific font style, size, or color.
2. Special form drawing. Registers stylized trademarks that include a distinctive color or design. If it includes both words and a design, prepare a JPG image of the completed trademark.

Then, determine your filing basis:

1. Use in commerce. You're already using your trademark to sell your goods or services across state lines. In this case, save a JPG or PDF image of your trademark as you currently use it in sales.
2. Intent to use. You haven't started using your trademark to sell goods or services but intend to within four years. If so, you need to begin commercially using the trademark and file an additional form and fee with an image or how you'll use your trademark in sales.

When you've gathered everything and know your trademark class, create a USPTO account and file your application through the Trademark Center. LegalZoom offers an attorney-led trademark registration service in which an attorney preps and files your application for you.

Step 4: Respond to USPTO actions

Due to the complex nature of trademarks, the registration process can be more of a back-and-forth conversation rather than a one-time submission and response. This is especially true if you personally filed. After you submit your application, you'll receive a serial number that you can use to check on its status. 

The USPTO will assign an attorney to examine your application. There are three potential outcomes.

First, if your application meets all the legal requirements for registration, the examining attorney will approve your trademark for publication. Congratulations! 

Second, if your trademark isn’t registrable, they'll issue an "office action" that explains why they can't move forward with your application and includes suggestions for fixing these issues, if possible. Official actions have a deadline and a proper procedure that you need to meet.

You may be able to resolve small errors or questions over the phone or email. Otherwise, use the "response to official action form" and address all the listed issues at once. Individuals without an attorney must sign the form themself. Businesses without an attorney will need a partner, officer, or member to sign. If you do have an attorney, they need to sign the form. If this initial action solves the errors in your application, the examining attorney will approve your trademark for publication.

Third, if your response isn't able to resolve the problem, the examining attorney will send you a "final office action" stating that they can't register your trademark. You still have an opportunity to appeal this final decision with the Trademark Trial and Appeal Board (TTAB). 

That said, if the examining attorney dismissed your application because your trademark wasn't distinctive enough, it may be more beneficial for you to work to differentiate your trademark now. Otherwise, you may risk the same issue in court later should someone use your trademark and claim it wasn't distinct enough to warrant protection. 

Step 5: Register and maintain your trademark

Once the examining attorney approves your application, your trademark will be published in OSPTO's Trademark Official Gazette. This publication gives others who think they’ll be harmed by your trademark time to oppose it—30 days, to be exact. If no one files a notice of opposition within those 30 days, the OSPTO will finalize your application (which can take another few months). When it's done, you'll receive your certificate of registration online.

You've made it out of the complex trademark registration process and obtained IP protection! It would be amazing if that were the end, but unfortunately, you still need to maintain your registration through the following actions:

• Continue to use your trademark commercially across state lines.
• File maintenance documents and pay the associated fees by their deadlines.
• Keep up-to-date contact information.

File the first maintenance documents after five years to affirm that you're still using the trademark in commerce. Then, file every 10 years to renew it. 

How much does it cost to trademark a clothing brand?

The cost of a trademark varies significantly by your circumstances. The following is a breakdown of potential registration costs.

• Base filing fee: $350 for each trademark class you include in your application.
• Statement of use filing fee: $150 per class to file that you are now using your trademark in commerce (for those who applied with intent-to-use).
• Extension fee: $125 per class if you need an extension to file your statement of use form.
• Insufficient information fee: $100 per class to clarify insufficient information in your application.
• Free-form text box fee: $200 per class for every 1,000 words typed into the free-form text box instead of the Trademark ID Manual to identify your goods and services.

In addition to registration costs, you'll also need to keep up with maintenance costs.

• Year-five declaration of use: $325 per class (required)
• Year-five declaration of incontestability: $250 per class (optional)
• Year-five declaration of use combined with declaration of incontestability: $575 per class (optional)
• Renewal and combined declarations: $650 per class, every ten years.

Protect your designs with LegalZoom

While you may or may not be able to prevent your latest look from being knocked off, taking steps to obtain available legal protection can provide you with peace of mind and a stronger legal case should you have to go to court in the future.

"Fashion is one of the world's most important creative industries," Mottley says. "While combating fashion design piracy is challenging, the United States intellectual property laws can be employed to protect fashion designs by design-driven companies and designers. In most cases, high-value fashion designs need a blend of copyright, trademark, and design patent protection to combat piracy."

Although the process can be complex, working with a professional legal service like LegalZoom from start to finish can significantly lessen the burden. With LegalZoom, you can work with an attorney who will perform a trademark search.

FAQs

What can I trademark for my clothing brand?

Clothing brands can trademark their brand name, logo, slogan, and product packaging or design. That said, protectable trademarks must be distinctive, unique, and nonfunctional. That means that the designs you wish to trademark need to be purely ornamental and irrelevant to their functional purpose.

How long does it take to get a trademark for a clothing brand?

That depends on several factors, such as how many trademark classes you're registering, whether you're already using your trademark in commerce (selling goods and services across state lines), and if there are any issues with your application. That said, the process generally takes 12 to 18 months.

Can I trademark my clothing brand if someone else has a similar name?

No, you typically cannot register a trademark that is confusingly similar to one that already exists. Even if you do manage to register the trademark, it may put you at a disadvantage in the future. Registration alone doesn't guarantee that courts will rule in favor of protecting your intellectual property in court.

The Katy Perry vs. Katie Perry case in Australia is one example. Although the Australian fashion designer had already registered "Katie Perry" as a trademark clothing brand in 2008, the Australian Federal Court still ruled that the American singer Katy Perry was using her very similar stage name to sell concert merchandise "in good faith."

Can I trademark my brand before selling products?

Yes, you can still trademark your brand before selling products if you have a bona fide intent to begin selling your goods or services within the next four years. In this case, you will register with "intent-to-use," which does require additional paper work and fees.

• Be distinguishable from existing names.
• Avoid restricted terms like "bank" or "insurance" unless you meet specific requirements.
• Avoid inappropriate or misleading language.

Stephanie Vozza contributed to this article.