Protecting Apparel Through Trademarks and Copyrights

Apparel presents its own challenges to protecting the unique branding and designs of shirts, hats, shoes, and other clothing. Most apparel may be protected through a combination of trademarks and copyrights, but there are tricks and traps to getting proper protection. Here are some tips for determining the proper intellectual property protection for clothing:

Are We Protecting a Trademark or Copyright?

• Many creators of unique apparel want to protect the design they put on a shirt or other item of apparel but are not sure whether they should seek trademark or copyright protection.

• In general, trademarks protect the brand of the apparel (think Hanes®-branded shirts).

• In general, copyrights protect the design of, or design printed on, the apparel.

For Trademarks: Tag It!

• The best way to ensure that your design is trademark-eligible is to place it on a tag, label, or sticker and attach it to your product.

• Placing a tag on a piece of clothing is the most common way companies identify themselves as the source of the clothing.

• For products that you may not want to tag, like shoes or accessories, consider printing your logo on the box or packaging that the products are sold in.

• Logos on apparel can be trademarks (think the Ralph Lauren Polo® logo), but they need be in a corner, side panel, near a hem, or other areas where brand logos are normally displayed.

• Large designs on the front and center of a piece of clothing would likely be considered “ornamental” or decorative and denied trademark protection.

For Copyright: Only Minimal Creativity Needed

• Copyrights have a low bar for obtaining strong intellectual property rights.

• On apparel, the design needs to only have a “minimal” amount of creativity to be eligible for copyright protection.

• Words and short phrases, common patterns (such as houndstooth), or well-known symbols (such as standard emojis) cannot be copyrighted alone, but it may be possible to copyright such common elements if arranged in a creative way.

For most clothing companies, a blend of trademark and copyright may provide the broadest intellectual property protection. Contact us to set up a consultation so that we can design the best portfolio for protecting the intellectual property of your apparel.