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Clothing trademark

Clothing Trademark: Ornamental vs. Trademark Use

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.

Ornamental Use

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 are not assuming that what is printed on the front is the name of a clothing brand.

What most people do not understand about ornamental words/phrases is that you generally can’t stop others from using them on their clothing products.  Everyone wants exclusive rights to use the clever phrase they came up with.  However, trademark law does not work this way when applied to ornamental non-trademark uses.  On the other hand, for most words/phrases others cannot stop you from displaying them ornamentally on your clothing items.  The only real exception is for famous trademarks.  For example, Nike’s JUST DO IT phrase is so well known that I can’t print it on the front of t-shirts.  It has become so famous that it is identifiable as a trademark, even when used in an ornamental fashion.

While this post is focused on clothing, 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.”  These are ornamental uses for products other than clothing.

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.  Keep in mind that even with a registration, you will most likely not be able to stop others from using your name/phrase in an ornamental fashion.  While over time your mark may become famous and recognizable like 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 kevin@yourtrademarkattorney.com, or complete the contact form found on this page to schedule your free initial consultation today.  I look forward to speaking with you.

Contact Kevin

333 N. Dobson Rd., Suite 5
Chandler, AZ 85224

(314) 479-3668

kevin@yourtrademarkattorney.com

© 2019 Kevin Haynie
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