Starting a clothing brand. Do I need to trademark?

Asked over 2 years ago - San Diego, CA

I'm starting a clothing brand. The name I'm using is the first name for a clothing brand. I read on another site that if I use the name for my brand and somebody registers it later they won't be able to sue me. Is that correct?

Attorney answers (5)

  1. Pamela Koslyn

    Contributor Level 20

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    Answered . Nope. Anyone can sue anyone at any time for anything. There's no such thing as "legal immunity," there are just smart ways to do things, and not so smart ways.

    What I'm guessing your're referring to is that 1st use can trump registration, but realize that's if a 1st user ends up in a dispute - a cease and desist claim, a trademark appeal board proceeding, or a federal civil lawsuit-- with a subsequent user who registers their TM 1st. TM rights aren't absolute. They're also not self-executing. That means that the TM ownes themselves have to acquire, assert, and protect any rights they've acquired.

    What you're apparently doing, starting a company without consulting a lawyer and relying on who knows what, is not so smart. The name you've chosen may not be viable or available, but you're using it anyway. Your query states that your name 'is the 1st name for a clothing brand," but I'm guessing you haven't actually done or caused a professional to do a proper trademark search.

    Clothing is generally not copyrightable or patenable, so a trademark is your best protection for your designs. See your own TM lawyer to do this right.

    Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to... more
  2. Maurice N Ross

    Pro

    Contributor Level 20

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    Answered . I will be more blunt than my colleagues---if you are starting a clothing brand without a budget for legal counsel, you are doomed to failure. Your branding of your clothing is the most important decision you will ever make---and anyone who is serious about starting a "clothing brand" needs to retain counsel to advise concerning numerous IP and business law issues. Most importantly, before you choose a name, you need a clearance analysis by counsel---otherwise, your entire branding strategy may blow up in smoke. Further, we live in an age where the internet transforms every small business into a business that has the potential of operating internationally----the global economy requires trademark protection not only in the U.S., but in any market where you might think about doing business. In the U.S., trademark rights arise from use in commerce---which means that even if you use it in commerce before someone else who registers, you still can allege that you are the senior user and maintain your rights. But in most other countries, trademark rights arise from registration, and the first to register wins. Further, it is foolish if you are operating a business like this to rely solely on your use in commerce to protect your trademark---as a practical matter you absolutely must register if you are serious about this business. And guess what---you need a lawyer to do this for you. And before you register, you need a clearance analysis by your lawyer to make sure that your branding decision will not be rejected by the trademark examiner. And even if you obtain a trademark clearance analysis---there is still no guaranty that you will get the trademark rights that you want---there are many reasons why a trademark examiner might reject your proposed trademark---it might be deemed generic, descriptive, or conflicting with other previously registered trademarks---and likely to cause consumer confusion.

    Here is the hard truth----you cannot start a clothing brand without retaining and working with legal counsel to make the right branding choices. You cannot rely on web-sites sites like this as a substitute for legal counsel. And further, you obviously need to educate yourself on the basics of intellectual property law.

  3. Daniel Nathan Ballard

    Contributor Level 20

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    Lawyers agree

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    Answered . I think you should read a few books on how to start a tee shirt business and a few books on how to protect your brand through trademarks and copyrights. Click on the links below and check out each book and the ones that are also listed on that same page.

    The above is general information ONLY and is not legal advice, does not form an attorney-client relationship, and... more
  4. Mario Sergio Golab

    Contributor Level 17

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    Answered . You may be confusing the principle of superior rights with immunity. No such thing as immunity. Superior rights are acquired by using the TM first, and upon a judicial proceeding being able to proof the early use. Not a glamorous procedure or result.

    USPTO Registered Patent Attorney, Master of Intellectual Property law, MBA I am neither your attorney, nor my... more
  5. Michael Alan Shimokaji

    Contributor Level 12

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    Lawyers agree

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    Answered . For a clothing brand, it is essentially a necessity to obtain a trademark.

    Whether you can use the first name of an existing clothing brand is unclear, since infringement depends on an examination of many factors. But as a general proposition, if the clothing brand, for example, has two words and you are going to use the first of the two words, it is likely that you will be infringing the clothing brand trademark.

    Michael
    www.accessipgroup.com

    The answer provided is only for general information purposes and does not constitute legal advice.

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