How to Start a Clothing Brand with a Trademark and Copyrights

By Michelle Kaminsky, J.D.

How to Start a Clothing Brand with a Trademark and Copyrights

By Michelle Kaminsky, J.D.

Once your clothing brand's name, tagline, and logo are ready, before you go any further, you should protect your company's trademarks and copyrights.

Woman smiling with laptop in front of fashion designs and mannequins

Trademarks and copyrights fall under the general category of “intellectual property," which are intangible creations of the mind. Trademarks identify your brand and distinguish it from competing clothing lines, while copyrights can prohibit others from using certain design elements without your permission.

Registering trademarks is a more straightforward process than obtaining copyright protection for designs, as discussed more fully below, so clothing brands should generally begin with the United States Patent and Trademark Office (USPTO).

Trademarks

According to the USPTO, a trademark is a “word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others." You may seek trademark protection for your brand name and logo as well as the tagline or slogan. The Nike "swoosh" logo and its slogan, “Just Do It," are among the best-known and most recognizable trademarks in the world.

Although you acquire some trademark protection by simply using the mark in commerce or registering with your state, the most comprehensive trademark protection arises under registration with the USPTO. Namely, you will be able to sue for trademark infringement in federal court if someone violates your rights concerning your mark.

To secure trademark protection through USPTO registration, your mark cannot already be in use by another business. Search the USPTO database to make sure your brand's name, logo, and slogan are unique.

Moreover, your mark cannot be too generic or merely descriptive. For example, a clothing brand name such as “Clothing" would not qualify for trademark protection.

Note that you can use your mark on apparel before applying with the USPTO and, in fact, it is advisable to do so in order to establish your common-law history with the mark and strengthen your request for protection. To apply with the USPTO, you must submit a request and fee.

Once granted a trademark, you must use it on your clothing to retain protection, and you must also enforce your trademark rights by “policing" potential violations. That means that you must be diligent in taking action against anyone using your mark or a confusingly similar one.

Finally, trademarks expire, so you must renew yours every 10 years to retain protection.

Copyrights

Copyrights protect original works. You already receive some common-law copyright protection from the moment the work is fixed in tangible form. However, you only have the right to sue for infringement in federal court if you register the copyright with the United States Copyright Office.

To request copyright registration, you must file a request along with the required fee. Copyrights generally last for the life of the author plus 70 years.

Copyright protection for fashion design is a tricky area because the law considers much of fashion “functional" and not copyrightable. However, some aspects, such as two-dimensional patterns, have a better chance of achieving protection. Your best option is to seek the advice of an intellectual property attorney if you would like to copyright aspects of your clothing brand.

Overall, your brand and designs are at the heart of your company, and registering trademarks and copyrights can help ensure that you are adequately protecting them as you build your empire.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.