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Question for a new inventor for clothing what would be the best way to protect my brand if I have a brand name and a great inven

Oklahoma City, OK |

Question for a new inventor for clothing what would be the best way to protect my brand if I have a brand name and a great invention? Would it be patent, provisional patent, trademark, copywrite or a combination of some kind? I want to sell my products to consumers after I limit the risk in doing so, so what woul be the best protection to do so?

Attorney Answers 5

  1. Based on the information given above, it appears you will most likely need at least a trademark and a patent. Briefly, the patent protects the invention and the trademark will protect the name and/or logo.

    The trademark application you need to complete will depend on whether or not you have used the proposed name in commerce yet. If you have not yet used the proposed name in commerce (i.e.: advertisements, marketing materials, transactions), then you may need to apply on an "intent-to-use" basis, which means that you have not yet used the brand name in commerce. This process requires a few more steps and, therefore, consultation with an attorney is advised.

    Fortunately, many intellectual property attorneys can address both trademark and patent matters for you. In addition, a local attorney will also be able to address whether or not your state has any relevant requirements in addition to these federal ones.

    Best of luck.

  2. I am hard pressed to imagine what an "invention" is for clothing. Trademark is normal, identifying the source of the goods. Copyright is not available for clothing (but is for certain types of textile design.) You probably need to consult an attorney to explain in more depth what your "invention" is and get advice specific to your needs.

    The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also terms and conditions item 9, incorporated as if it was reprinted here.

  3. You will need to discuss the details of your business plan with an attorney who can give you advise you about patent prosecution to determine if your invention is patenatable, as well as other legal issuses. It is best to consult with counsel before jumping into the market. See e.g. 35 USC 102(b) ("A person shall be entitled to a patent unless . . . (b) the invention was . . . in public use or on sale in this country, more than one year prior to the date of the application for patent in the United States").

    Best of luck

    This post is for general informational purposes only. No attempt is made to provide legal advice.

  4. With due respect to my colleagues, patent protection is ordinarily not relevant to clothing. While there is a long-shot possibility that you could obtain a design patent, the cost of doing so is usually worth the benefits. Copyright law also generally does not protect clothing designs. Most companies in the fashion business in the U.S. rely almost entirely on trademarks to protect their clothing designs. If you are developing a line of clothing, the branding decision you make is critical, and you should not choose a name until you retain IP counsel to conduct a clearance opinion. It is possible that there are other IP strategies for protecting your new clothing designs, but only by meeting with competent, experienced IP counsel can you develop an effective strategy.

    Also, in developing a branding and IP strategy, you need to consider the global market, not just the U.S. In the age of the internet, it is inevitable that you will have an international customer base, and that means that you need to take into account IP law issues in many countries throughout the world.

  5. I also think patent protection is ordinarily not relevant to clothing, unless you have a new feature to your clothing that solves a technical problem in a unique way - say a new zipper, a new shoulder pad, a new manner of stitching, a new pocket structure, etc. The problem with patents on clothing is that they have really narrow scopes of protection and there are usually many alternatives that avoid the patent. Design patents are especially not worthwhile, as they are even narrower and extremely easy to avoid and are relatively costly to obtain since you need a patent attorney to do them properly and we don't come cheap.

    Copyrights are not generally not available for clothing designs which are functional as copyrights are for artistic works not functional items. After all, fashion designers attempt to design clothes which are functional as well as aesthetically pleasing. They must consider who is likely to wear a garment and the situations in which it will be worn. There are some exceptions like expensive wedding dresses that obviously can become real unique works of art, but those exceptions are few and even there the law is unsettled. Some clothes are made specifically for an individual, as in the case of haute couture or bespoke tailoring. Today, most clothing is designed for the mass market, especially casual and every-day wear, and I take it that is your focus.

    So, fashion houses in the U.S. you will be relying primarily or exclusively on brand name protection and recognition for your clothing designs. The names can outlive their originators (VERSACE lives on even though Gianni Versace died 15 years ago). You have seen them, they're called "Designer Labels." Examples include labels such as Bijan, Burberry, Gucci, Armani, Calvin Klein, Versace, Shiatzy Chen, Louis Vuitton, Cartier SA, Dolce & Gabbana, Christian Dior, Polo Ralph Lauren, Prada, Valentino, Chanel and others which are derived from the company's founder and most iconic designer. Other clothing (and accessories) marquee names do not directly refer to the company's founder: for example, Dooney & Bourke, United Colors of Benetton, and L.L.Bean may be referred to as designer labels. While members of the upper middle class, or the mass affluent, are perhaps the most commonly targeted customers of these designer labels, some marquees—such as Cartier—tend to a wealthier customer base.. When celebs are on the red carpet, the question is "who's design are you wearing?" not "Is that patented?".

    So, your first step is to pick a catchy brand name (maybe your own name or pseudonym) and get with an IP attorney for a clearance opinion on that brand. The clearance will involve tradename clearance, domain name clearance, trademark clearance and servicemark clearance.

    Bottom Line (which I put at the bottom) is trademark, servicemark and tradename should be your primary focus and only secondarily should you focus on patents, and then for nonobvious solutions to technical problems not to standard items just styled differently.

    I am not your lawyer and you are not my client. Free advice here is without recourse and any reliance thereupon is at your sole risk. This is done without compensation as a free public service. I am licensed in IL, MO, TX and I am a Reg. Pat. Atty. so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.