Trademarking a Clothing Brand in the US Before You Print It
By The Velocity Wear Team
Naming is the fun part and it is where a large number of clothing brands accidentally build on land they do not own. The sequence that causes the damage is entirely normal: pick a name, buy the domain, design a logo, order production, launch — and then receive a letter from a company that registered the same name in the same class four years ago.
The whole problem is avoidable with an afternoon of searching at the start.
Class 25 is the one that matters
US trademarks are registered against classes of goods and services. Class 25 is clothing, footwear and headwear. Somebody can own your exact name in a different class and be irrelevant to you; somebody owning something confusingly similar in class 25 is a direct problem.
Note "confusingly similar" rather than "identical". A different spelling of the same-sounding word is not a workaround, and neither is adding "clothing" or "apparel" to the end. The test is whether consumers would be confused, and consumers are not attentive to spelling.
Search before you commit to anything
- 1Search the USPTO database for the name and for obvious variants, restricted to class 25. It is free and it takes minutes.
- 2Search for common-law use — a business trading under the name without a registration can still have rights. An ordinary web and social search covers this.
- 3Search the app stores, Instagram and the domain registries, because an unregistered but active brand is still a practical obstacle even if it is not a legal one.
- 4Consider the other markets you plan to sell in. A US registration does not protect you in the UK, Canada or the EU, and finding out that a UK brand owns the name there is much better before you have built a US following on it.
Intent to use, and why it helps
The US system allows an application based on a bona fide intention to use the mark in commerce, before you have actually sold anything. For a brand in production this is genuinely useful: it establishes a filing date while you are still making the goods, rather than leaving a gap in which somebody else files.
You still have to use the mark and file evidence of use later for it to register, so it is not a way to hoard names. It is a way to be first in the queue with something you are actually building.
What the neck label has to do with it
This is the practical link to production. Your brand name goes on the neck label, on the hang tag, on the packaging and into the product photography. Changing a name after production means new labels, new tags, and a stack of garments carrying a mark you have been told to stop using.
The labels are made during the run rather than after it, so the name decision is locked considerably earlier than founders expect. Do the search before you send artwork, not before you launch.
A note on logos versus names
A word mark protects the name in any typeface, which is usually what a clothing brand wants, because your wordmark will be set in different type on different products for years. A design mark protects a specific logo. They are different applications and many brands eventually want both, but if you are choosing one first, the word mark is generally the more valuable.
A trademark attorney is worth the fee for the filing itself. The searching, though, is something you can and should do yourself before you spend money on anything — including the production run.
