When launching a fashion brand, most entrepreneurs focus on naming the brand or designing a logo. But did you know that your clothing designs themselves can also function as trademarks?
If you're wondering if you can trademark a clothing design, the answer is yes—through a type of trademark protection called trade dress. This article explains what trade dress is, how it applies to fashion, and most importantly, how to protect clothing designs under trademark law.
What Is Trade Dress?
Trade dress refers to the overall visual appearance of a product or its packaging that consumers associate with a particular brand. In the fashion industry, this can include distinctive stitching, patterns, colors, or even the shape of a garment or accessory.
To trademark clothing design through trade dress, two key legal requirements must be met:
- The design must be nonfunctional
- The design must be distinctive
Functional vs. Nonfunctional Clothing Design Elements
Under U.S. trademark law, functional features cannot be protected. The legal precedent was set in TrafFix Devices, Inc. v. Marketing Displays, Inc., where the Supreme Court held that a feature is functional if it is essential to the product’s use or affects its cost or quality.
Examples of Functional vs. Nonfunctional Features
- Decorative stitching pattern: May be protectable
- Reflective strip to enhance visibility: Functional, not protectable
- A specific color used for branding purposes: Possibly protectable if it has acquired distinctiveness
- A belt shape used to hold up pants: Functional and not eligible for protection
This means that if a design element helps the garment function or reduces production costs, it is considered functional and cannot be protected through trade dress.
What Makes a Clothing Design Distinctive?
If your design is nonfunctional, the next step is proving that it is distinctive—that consumers recognize the design as representing your brand.
There are two types of distinctiveness:
1. Inherent Distinctiveness
This is rare in clothing design and applies when a design is so unique that it immediately signals the source to consumers.
2. Acquired Distinctiveness (Secondary Meaning)
This occurs when consumers have come to associate the design with your brand through extensive and consistent use over time.
How to Protect Clothing Designs Through Trade Dress
If you're serious about learning how to protect clothing designs, follow these steps to build a strong case for trade dress protection:
1. Use the Design Consistently
Your design should be used across multiple product lines and over an extended period.
2. Build Brand Recognition
Sales success, customer loyalty, and high visibility all help establish distinctiveness.
3. Invest in Advertising
Promote the design heavily in your branding, advertising, and packaging materials.
4. Collect Evidence
Gather consumer surveys, press mentions, and examples of unsolicited media coverage that tie the design to your brand.
Real-World Examples of Clothing Trade Dress
Several well-known fashion brands have successfully registered and enforced trade dress rights for their clothing designs:
- Levi Strauss & Co. has protected both the red tab on its jeans and its distinctive back-pocket stitching.
- Christian Louboutin obtained U.S. trademark protection for his red-soled shoes, now widely recognized as a luxury symbol.
- Burberry has protected its signature plaid pattern, using trade dress law to stop unauthorized use on clothing and accessories.
These examples show that with planning and persistence, you can trademark a clothing design and protect your brand's unique look.
Trade Dress vs. Copyright vs. Patent
It’s important to understand that trade dress is not the same as copyright or patent protection:
- Copyright protects original artistic or graphic works (like a printed design on fabric).
- Patents protect functional inventions or processes.
- Trade dress protects the look and feel of a product that identifies its source.
If your goal is to trademark clothing design elements that serve a branding purpose, trade dress is the correct route.
Do You Need to Register Trade Dress with the USPTO?
While unregistered trade dress may still receive protection under the Lanham Act, registration with the United States Patent and Trademark Office (USPTO) provides stronger legal rights and enforcement capabilities.
To register, you must show that your design is both nonfunctional and has acquired distinctiveness.
Frequently Asked Questions (FAQ)
Can you trademark a clothing design?
Yes. Clothing designs can be protected under trademark law using trade dress if they are nonfunctional and distinctive. This allows your brand to own exclusive rights to design elements that identify your products in the marketplace.
What is trade dress in fashion?
Trade dress in fashion refers to distinctive, nonfunctional design elements—like stitching, color, or garment shape—that consumers associate with a specific clothing brand.
How do I protect my clothing design under trademark law?
To protect a clothing design:
- Make sure it is nonfunctional
- Use it consistently
- Promote it as a source identifier
- Provide evidence of consumer recognition
Can I register trade dress with the USPTO?
Yes. Registering trade dress with the USPTO gives you stronger legal protection and makes enforcement more straightforward. You must prove nonfunctionality and distinctiveness.
Is trade dress protection the same as copyright or patent protection?
No. Trade dress protects brand-identifying design features. Copyright protects original artistic works, while patents cover new inventions or functional aspects of a product.
Do I need an attorney to trademark a clothing design?
While it's not legally required, working with an experienced trademark attorney is highly recommended. Trade dress claims can be complex, and an attorney will help you avoid costly mistakes and maximize protection. TrademarkFactory® offers flat-fee packages and works exclusively through trademark attorneys. Without TrademarkFactory®, working with one can cost a pretty penny.
Final Thoughts
If you’re building a clothing brand, protecting your designs is critical to maintaining your competitive edge. By understanding how to protect clothing designs through trade dress, you can safeguard your creative work and reinforce your brand identity.
Wondering whether your design qualifies for protection? At Trademark Factory®, we specialize in helping fashion entrepreneurs and established labels secure and enforce trademark rights for names, logos—and yes, even clothing designs.
Ready to trademark your clothing design?
Contact us today for a free, no-obligation consultation.