New business owners often choose to get their start in the clothing industry. They usually have a catchy name or slogan that they want to put on a shirt. And like other business owners, they want to protect their brand. However, it’s important to understand the difference between ornamental use and trademark use for a clothing trademark. Understanding the difference can have a big impact on your trademark application.
You can think of an ornamental use of a name or slogan as a decoration. Instead of acting as a real clothing trademark, it is something that is just part of the clothing. While a trademark indicates the origin of a clothing product, an ornamental use is part of the product itself. For example, if I put a catchy slogan on the front of a shirt, that is just an ornamental use. It would not function as a clothing trademark. While people may buy clothing because they like what it says, they will not necessarily make an association with the source of the clothing.
While this post is focused on clothing, I should mention that other types of goods are also prone to ornamental use. For example, coffee mugs often feature words or phrases that are ornamental. We’ve all seen home decorations with phrases printed on them, such as “Home Sweet Home.” So as you can see, this issue occurs in other industries, too.
What does this mean in terms of trademark registration? Well, if you apply to register a clothing trademark and provide a specimen showing an ornamental use, your application will be rejected. While you may be allowed to register your mark on the Supplemental Register, that is not the ideal situation. Getting your clothing trademark on the Principal Register provides you with substantial trademark rights, and should be your goal. Let’s take a look at how you can do that.
Clothing Trademark Use
The easy way to avoid an ornamental use refusal is to change where you put your clothing trademark. Trademarks for shirts are usually located inside the shirt’s collar. Sometimes you will find it printed there. Other times it may appear on a tag there. This is a trademark use because people perceive the name written inside the collar of a shirt as an indication of where the shirt originated from.
There are other ways of designating a clothing trademark, as well. Many clothing items have a tag attached to them where you can find the trademark. Some companies use stickers, as well. When you buy new clothes, you probably spend a few minutes removing these items from the clothing. There is a very good chance that everything you are removing has the trademark of the company that the clothing item came from.
When you submit a specimen to the Trademark Office showing your clothing trademark, one of these tags, labels, or stickers should be visible. It should include your clothing trademark. If done properly, your application will avoid a rejection for ornamental use. While over time your mark may become recognizable on the front of a shirt (think Nike’s “Just Do It”), it does not start off that way. So you need to make sure that what you have is a trademark use, and not an ornamental one.
Do You Need Assistance With Your Clothing Trademark?
If you have a clothing business and would like to ensure that your trademarks are protected please call me at (314) 479-3668, email me at firstname.lastname@example.org, or complete the contact form found on this page to schedule your free initial consultation today. I look forward to speaking with you.