Why, precisely, is a person willing to spend $10,000 on a Gucci dress but would be unwilling to spend even $1000 on the exact same dress that doesn’t say “Gucci” on the label? In short, what is it that people are actually buying when purchasing designer clothing? The dress or perhaps are people instead purchasing the trademark, GUCCI, which represents a feeling or an idea which consumers find valuable? Certainly, the Gucci corporation would likely say, both, and we tend to agree. Still, while Gucci likely does put forth a good product, it is the incredible brand identity which they have managed to build and represent with their iconic trademark, GUCCI, that is ultimately its strongest and most compelling selling point. People want to feel a certain way and wearing a Gucci dress somehow manages to embody this feeling. This article will consider how to Trademark a Clothing brand and protect your new sartorial genius.
TRADEMARK YOUR CLOTHING BRAND NAME AND BECOME LEGENDARY
A clothing company’s most asset is its trademark. Don’t believe me? What’s the first thought that comes to mind when you see the word Versace on a hat. That hat is fancy – it must be expensive. Does that hat look particularly interesting? Perhaps. Does the hat appear to be made of exquisite fabrics? Possibly. Does the hat keep the person wearing it any warmer or shaded from the sun? Likely not. Why did this person spent $500 on a baseball hat? Because it has the name Versace on it.
This, of course, is the essence of trademark law – a trademark is a name, logo, or slogan, that when used in conjunction with the sale of a particular product, allows the consumer to immediately understand the source-company selling the product and thereby influence the consumer’s decision to buy or pass on the product. When developing your clothing brand’s trademarks, ask yourself, how do I want a person to feel when they see my brand? What qualities does the brand represent? Is it a luxury clothing brand? Or a sporty brand? A casual clothing brand? A lingerie company. Select a trademark which represents a brand-ethos that is memorable and congruent with your company’s culture and then protect it like your life depends on it. Here’s how.
CONDUCT A TRADEMARK SEARCH FOR ELIGIBILITY
Remember, not all names/logos/slogans are necessarily trademarkable. To be eligible for trademark protection, a prospective trademark must be distinct, relative to the goods sold AND must be sufficiently different than any existing marks (which sell similar products). So, to satisfy the first criteria, a new clothing company couldn’t obtain a trademark on, “Best T-Shirts” because such a name merely describes what it is that is being sold. Therefore, “Best T-Shirts” is not distinct. Instead, please try to select a name that is unique and non-descriptive; Versace, for example, has no obvious relationship to clothing and is therefore an excellent brand identifier. To satisfy the second criteria, please be sure to speak with a trademark attorney and conduct a trademark search to identify both identical and confusingly similar existing trademarks. The idea here that your new trademark cannot be so similar as to cause a “likelihood of confusion” with existing trademarks. Thus, you could not select VERSACHAY as your trademark despite its different spelling from VERSACE because the marks would be so similar as to cause a Likelihood of Confusion.
SUBMIT A TRADEMARK APPLICATION TO THE USPTO
In order to obtain protection of your trademark across the entire US, it is critical to Submit a Trademark Application to the United States Patent and Trademark Office (USPTO). This is a rather straightforward process and involves providing the USPTO with certain administrative information of the owner of the mark (name, address, type of business entity etc.) along with the prospective trademark (Versace), and the products/services to be sold under the banner of the mark. As a clothing company, you will be selecting Class 025 which specifically covers clothing and apparel. If you have not yet used your mark in commerce, which is to say, made a “meaningful number of sales” of your clothing under the banner of the trademark to customers across multiple states, you will need to file an “Intent-to-use” trademark. Intent To Use Designations simply means that while you have not “used your mark in commerce” yet, you intend to use your mark in commerce and are therefore deserving of preliminary trademark protections. Finally, you must submit your payment. The USPTO charges either $250 or $350 per class of goods sold. If you are only selling clothing, you will likely only be required to pay a single fee of $250 but if you’d like obtain proprietary rights to your name for multiple classes of goods (stickers, tennis rackets), you will need to pay additional Gov. filling fees. Assuming your mark is indeed eligible for protection and is approved by a USPTO examining attorney, you will receive a trademark registration from the USPTO within roughly 6-8 months of your filing date.
MONITOR AND ENFORCE YOUR TRADEMARK RIGHTS
Trademark law is concerned with not only your own active use of the trademark but also with the manner in which you control your trademark; if others are illegitimately using your trademark without your permission, the value of the mark as a brand identifier naturally becomes weak and vulnerable to dissolution. You MUST enforce your trademark rights against infringing clothing company competitors and the first step in this enforcement program is monitoring the USPTO for new marks which are submitted and potentially an infringement of your own mark. If you detect any new and infringing marks, you’ll have time to send them a cease and desist letter and begin the opposition process.