Clothing Brands

There are few trades where brands are so important as clothing and the fashion industry. If you want to start a new line of clothing, then first of all you must choose a brand that doesn’t infringe someone else’s trademark. Then you should protect the brand by registering it as a trademark.

Choose A Strong Trademark

The strongest kind of mark is a made-up word such as Xerox or Kodak. The next best is a name that’s a real word that has nothing to do with the goods or services, such as Apple for computers or Blackberry for personal computing devices. These ‘strong’ marks will get wider legal protection.

Design marks (logos) can often make ‘stronger’ trademarks because a design is more “distinctive”. The downside is that you have to use the mark exactly as registered to have the full benefit of the registration. Also, the words themselves are not really protected. They’re only protected when they’re used as part of the mark as registered.

There is no fool-proof method for choosing a strong trademark. One of the methods our clients recommend is to have a brainstorming session. This tends to work best in a group, so find a group of friends or colleagues and set aside an hour or so for a brainstorming session. Make a list of all suggestions, no matter how wild, even if you don’t like most of them. Return to the list in a few days, and try to identify some strong candidates to research further.

Some Examples of Good and Bad Trademarks

A bad trademark would be Ladies’ Lingerie Shop, as it would be too descriptive and not registrable. A better mark would be Sam’s Lingerie. Much better would be names that have nothing to do with clothing, such as La Senza, La Vie en Rose or Victoria’s Secret.

Clothing Trademarks FAQs

Can I Register My Name As A Trademark?

You can use your own name for your clothing line, but you may not be able to register it as a trademark.

According to Canada’s trademark laws, a trademark is not registrable if it is “primarily merely a name or surname” of a living person or a person who has died within the past 30 years. (A “surname” is your family name. A “name” is your given name plus your surname.) The reason for this is the principle that nobody should be prevented from using their own name to sell their goods and services. So, whether you can register your own name as a trademark depends on whether the general public is likely to think it’s “primarily merely a name or surname”. If your name is a common one, then you might be out of luck.

One of the ways the Trademarks Office determines this is to check how many telephone book listings there are for the name in Canada. Usually, if there are 25 or more listings, then they figure the general public is quite likely to recognize the name as “primarily merely” a name, and the application is refused.

There are a couple of ways around this objection. The simplest is to use only your first name, such as using the trademark by the Chanel company for COCO, for clothing, jewellery, etc. Another is to apply for the trademark after you’ve been using for at least five years and have built a significant reputation across Canada. If you’re an American resident with a trademark in the U.S., that may also help quite a bit. There are others, so even if you have a common name, it’s worth asking us for our opinion.

How Can I Protect the Slogan/Design on My T-shirts?

A registered trademark is the best way to protect your slogan and/or design. You will need to have actual sales before you can register your trademark, however.

For the wares you will sell before registration, you can increase your trademark protection a little by putting the ‘TM’ symbol beside the slogan or design right away. You don’t need the registration in order to do so. All it means is you’re laying claim to your trademark (which is the whole point). Once you’ve registered the mark, you can change the artwork for your next production run to the ‘®’ symbol if you wish.

If I’ve registered my business name or incorporated my company, is my trademark protected?

In a word, no. Well, at least, not exactly.

At best, your business name might be considered a “common law” trademark – but only if you’ve actually used it as a trademark. Yes, it’s a bit of a fine distinction, but if you think of a trademark as a “brand” name, it helps to show you the difference (e.g., Apple Inc. is the business name, IPOD is the trademark; Pepsico Inc. is the business name, PEPSI-COLA is the trademark).

So, if your company name is Sloppy Joe Inc. and your trademark – your brand name – is “Sloppy Joe”, then you might have some limited trademark protection under common law.

However, this doesn’t give you the same rights as a registered trademark. If you want to protect your trademark, your best protection comes from registering it.

The Retail Clothing Store

A retail clothing store, whether storefront or online, should have a registered trademark to protect itself from imitation. This is particularly so if you have a “house brand” that you also sell.