Protecting a Trademark for Clothing

by | Sep 3, 2025

Protecting a Trademark for Clothing: Source Identifier vs. Ornamentation

Clothing brands face a distinct challenge in trademark law. Unlike breweries and distilleries, where the brand name on a label clearly serves as a source identifier, Apparel often features words, logos and designs that are viewed as merely decorative. The U.S. Patent and Trademark Office (USPTO) is strict about this distinction: to qualify for trademark protection, your mark must function as a source identifier, not just ornamentation. Successful registration depends on properly using the mark and submitting a proper proof of use specimen with your trademark application. 

What Trademark Law Protects

A trademark is a unique word, phrase, symbol, or design that identifies and distinguishes the source of goods. For clothing, this often means:

  • Brand Names (Nike®, Adidas®)
  • Logos (the Nike Swoosh, Adidas stripes)
  • Distinctive Design Elements (Lacoste alligator on the chest, Levi’s red tab)

What trademark law does not automatically protect is a slogan or image that is used solely for decoration — for example, a logo or large phrase printed across the front of a shirt.

The Ornamentation Issue

Clothing trademark applications are often rejected by the USPTO on the ground of ornamental use.

Examples of Ornamentation (Not Protectable Alone):

  • A shirt with “Good Vibes” in large font across the front.
  • A hat with “Grill Boss” printed as a decorative phrase.
  • A hoodie covered in floral graphics or repeated patterns.

In these cases, the USPTO views the wording or design as a style choice rather than a brand source.

How to Use a Mark as a Source Identifier

To qualify for trademark protection, the mark must be presented in a manner that indicates the source of goods. Essentially, customers must view the mark as the brand name, rather than a decorative element. In other words, the mark must be used on clothing in places people typically look for a brand tag. A slogan can function as a trademark if consistently used on labels or tags (not just printed large across apparel). 

An example of a protectable source identifying use of a slogan would be the same startup uses “LOVE WINS®” consistently on sewn-in neck tags, product packaging, and a small chest logo. However, an example of a non-protectable ornamental use of a slogan would be if a fashion startup prints “LOVE WINS” across a T-shirt front.

Acceptable Source Identifiers:

    • Neck Label or Hangtag: The brand name/logo placed inside the collar, on the tag, or on packaging.
    • Small Logo Placement: A modest logo on the chest, sleeve, or hem.  
  • Consistent Use Across Products: Using the same word/logo on tags, labels, and marketing materials.

Over time, the brand can build distinctiveness through a name or logo, and the USPTO will recognize the mark as a source identifier.

Strategies to Overcome Ornamentation Refusals

If the USPTO refuses a clothing mark, deeming it “ornamental,” there are several approaches that can be taken to address this office action including:

  • Submit Evidence of Secondary Source – Indicate that the phrase/logo is already recognized as your brand through use on other products (e.g., accessories, packaging).
  • Supplemental Register Filing – If the mark has not yet created distinction, register it on the Supplemental Register while building recognition.
  • Use on Labels/Tags – Emphasize the mark on clothing tags, inside labels, and packaging to demonstrate source-identifying use. Highlight the mark in your marketing (ex. advertise “look for the purple dragonfly on the sleeve”) For packaging, you can put a brand label sticker on a plastic bag with the clothing inside or add a tag that has the brand label on it.

Best Practices for Clothing Trademark Protection

Following certain practices can help to secure trademark protection. First, always use your brand name/logo on labels, hangtags, and packaging. Alongside this, keep a consistent style across collections to build recognition. Avoid changing colors, orientation and proportions. Moreover, avoid relying solely on slogans printed as decoration. Finally, file in the correct class: clothing falls under Class 25 in USPTO filings and consider registering both the word mark and logo mark.

For clothing brands, trademarks protect the brand identity. By using marks strategically as source identifiers, and not merely as decoration, apparel businesses are able to secure trademark rights that protect their brand growth and prevent unauthorized use or imitation. Your mark is more than just a fashion statement. Place it on labels, tags, and packaging to show the USPTO (and consumers) that it identifies your brand, not just your style.

If you have a clothing brand you’d like to protect, reach out to Tracy at Tjong@EvansFox.com.

Tracy Jong is a Senior attorney at Evans Fox LLP with 30 years of experience focusing her practice in business law, intellectual property and licensing for alcohol and cannabis. Tracy Jong is a member of the New York Bar and is a registered attorney at the United States Patent and Trademark Office. She can be reached at Tjong@EvansFox.com.

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The content has been prepared for informational purposes only; it should not be construed as legal advice, does not create or constitute an attorney-client relationship, and readers should not act upon it without seeking professional counsel.