đź“Ś Get the latest strategies to protect your revenue in your inbox

How to protect your fashion designs from being stolen
IP Insights
7 mins

How to protect your fashion designs from being stolen

Table of Contents:

    Talk to a Red Points brand protection expert, today!

    You are an artist because you are a fashion designer, and because your designs have a practical purpose, your work should be protected. Legal protection in the form of copyright trademarks, and design patents each has its unique set of standards and procedures that must be adhered to by law.

    In this article, we will find out what a trade dress is, how to trademark a clothing brand and brand name, and avoid common fashion trademark mistakes.  

    What is a Trade Dress?

    Trade dress includes all aspects used to market a product or service, such as logos, packaging, and advertising. For a product, the trade dress might include the container, the accompanying displays, and even the product itself. For example, the Hard Rock Cafe restaurant chain’s distinctive dĂ©cor might be considered a type of service because it is the setting in which the service is performed.

    It is not uncommon for a trade dress to be viewed as a product design. Obtaining a design patent may be more appropriate in some situations than employing trade dress protection to protect the product’s design configuration and form. Common law rights can be used to defend trademarks. Trade dress, on the other hand, is protected under the Lanham Act and can be registered as a trademark with the United States Patent and Trademark Office (USPTO).

    In general, a trademark application must contain the same information as a trade dress application. Both distinctiveness and non-functionality are required in trade dress. It is not necessary to register trade dress in most cases. In the United States, you can use the Supplemental Register to register trade dress that isn’t already unique by its very nature. The United States Principal Register can be registered if the owner can demonstrate secondary significance.

    Trade dress, like other trademarks, can be registered with the USPTO and get federal court protection to prevent trade dress infringement.

    Both of the following must be true to gain protection:

    • Unless it has gained secondary significance, the trade dress must be fundamentally distinctive.
    • There must be a risk of consumer misunderstanding due to the junior use.

    What Inherently Distinctive Means

    Trade dress is naturally distinctive if its exceptional and memorable nature helps largely to distinguish the origin of the goods or services and is also conceptually independent from the product or service.

    For instance, the Supreme Court of the United States determined that the interior design of a Mexican restaurant chain was fundamentally different due to the presence of a mural, brilliantly colored crockery, distinctive exterior umbrellas, neon border stripes, and an innovative method of service.

    Trade clothing that serves a practical purpose isn’t very remarkable. To qualify as “trade dress,” a design or form must be used primarily for promotional reasons. As an example, certain perfume bottles and the boxes they come in have been created to be easily recognizable with a particular brand.

    Trademark registration alone may not suffice in a brand infringement case, however. A brand that is distinct does not always indicate that the trade dress is powerful.

    For instance, the court concluded that although being registered, the trade dress of Calvin Klein’s “Eternity” perfume was weak since it was highly similar to perfume bottles used by other designers and featured aspects that were prevalent in the business, such as an hourglass shape. Adding insult to injury, there was no additional significance to it all.

    How to Show Secondary Meaning in Trade Dress

    Plaintiffs must prove secondary meaning in trade dress by demonstrating that the principal importance of the product characteristic in the public eye is to identify the product’s source. Advertising costs, consumer surveys that link the mark to its source, unsolicited media coverage of a product, sales success, efforts to imitate the mark, and the term of exclusive use of the mark are all factors that the court might consider.

    Can you patent fashion design?

    Copyright protection has been refused for clothing design because Congress considers clothes practical rather than creative. You must know how to copyright a clothing brand and protect your business.

    For functional inventions and processes, utility patents are the best option, whereas design patents are better for aesthetic designs (which protect the ornamental design of a product).

    A single product can contain both functional and decorative characteristics that a utility patent can protect. The product’s configuration, form, and/or surface decoration can also be protected by design patents. There are no structural or functional advances that may be protected by a design patent. The duration of a design patent in the United States is 15 years from the date of issuance by the Patent Office.

    The US Patent and Trademark Office reviews and examines design patent applications similarly to utility patent applications. USPTO must decide that the design is original (new) and non-obvious compared to prior existing product designs for the design patent application (DPA) to be granted.

    For a design patent, the scope of protection is established by the figures included in the design application. To get design protection, drawings of the product must be made in conformity with Patent Office requirements. A draftsperson who is conversant with these standards and has experience preparing drawings for design patent applications is usually required.

    A wide range of goods is eligible for design patent protection. Eyewear, footwear, totes and purses, furniture, product packaging, lighting, and even screenshots from computer displays are all examples of items in the product category.

    On the other hand, design patents can be a more expedient route to patent protection. In contrast to the two to three years (or even more), it can take to get the first action on a utility patent application in other countries, the examination process in the United States normally takes a year.

    In addition, design patents have the same marketing advantages as utility patents, which is why they are becoming increasingly popular. To designate the product “patent pending,” the design application must be on file. It is possible to modify the marking to “patented” following the issuance of a design patent.

    In today’s market, design issues are becoming increasingly important. When used as the sole form of intellectual property protection or as part of a comprehensive legal strategy, design patents may be an effective tool for safeguarding design ideas and reducing competition.

    How can I protect my fashion brand name?

    By applying for trademark protection with the United States Patent and Trademark Office, you will be able to protect your clothing brand. Registering your brand as a trademark grants you the exclusive right to exercise certain legal rights, including those for your brand’s name, emblem, and tagline.

    In addition, when the United States Patent and Trademark Office register your trademarks, you become your brand’s formal and legal owner. The most straightforward method for protecting a clothing brand is to register the brand as a trademark.

    One further step you may take to safeguard your clothing brand is to ensure that you are the owner of its corresponding domain name. This will ensure that your website achieves a high ranking in search results for your brand name and any phrase or slogan you may use to sell your apparel line.

    You can register a trademark for a Clothing Brand by applying to the United States Patent and Trademark Office.

    As a federal proceeding, trademark registration is subject to federal law and regulations. The USPTO advises that you deal with a trademark attorney since the process can get quite rapidly complicated. There are, however, five phases to obtaining a trademark for a clothing brand:

    1. Finding trademarks to protect and picking which ones you’ll defend
    2. Choosing which items to sell under your trademarks is the second step
    3. Preparation and submission of the application
    4. Processing an application for a U.S. Patent and Trademark Office (USPTO) examination
    5. Use your logo on your clothing in the correct manner

    On average, applicants’ wait times range from 8 to 12 months for trademark registration.

    When should you trademark your Clothing Brand?

    According to most experts, you should start the trademark registration procedure as soon as feasible. The sooner you begin, the sooner you can learn if your trademark is eligible for registration, which might take up to a year.

    In addition, the United States Patent and Trademark Office (USPTO) will allow you to apply to register your Clothing Brand trademark before launching your firm, and around half of those who apply to do so. 

    When you have a head start, you’ll:

    • Early detection of possible barriers is essential. Every trademark application is examined by the United States Patent and Trademark Office (USPTO) in Washington, D.C. To be informed of potential conflicts with registered trademarks or other brand concerns, you should file as soon as feasible.
    • Make sure your trademarks don’t look like those of your rivals. Whenever a new trademark application is filed with the USPTO, the federal trademark database is updated to include the new trademark application. Even more crucially, your application will begin preventing identical trademark applications from your rivals as soon as it is submitted!
    • Set the timeframe for “incontestability” of your Clothing Brand trademarks today. Your federal trademarks are even more protected after five years of use, as only a small number of techniques can be used to dispute them.
    • Following trademark registration, you must be prepared to defend your Clothing Brand trademarks and your brand. You’re in charge of spotting infractions and ensuring your brand is protected.

    How do you protect your trademark registrations?

    The following three tactics are used in the protection of registered trademarks of any kind, including those belonging to clothing lines:

    • Keep an eye out for anybody using your trademarks without your permission (or anything similar)
    • Put your trademark rights into action
    • Remember to renew your registration(s) when the 5th and 10th-year anniversaries roll around

    Monitoring for any inappropriate use

    Conduct regular research to see whether or not any of your rivals are utilizing your brand (or anything similar). Any infraction of the rights associated with your trademark should be brought to your attention.

    But manual monitoring can be tedious, and you need significant human resources to monitor all the copyright infringement of your clothing brand and parent design. However, if you use the Brand Protection Software offered by Red Points, you will have an easier time finding, tracking, and removing counterfeit listings and vendors.

    Use the most cutting-edge brand protection solutions to automatically discover and process thousands of instances of intellectual property (IP) infringement. Then, focus on the offenders who do the most significant damage. Red Points automates the process of searching the internet by using bots and sophisticated picture recognition to find possible infractions on your behalf.

    It operates 24 hours a day, seven days a week to speed up the analysis of thousands of violations or undertake human inspections using the brand protection solution dashboard, and it increases your productivity by taking into account repeating trends and likely keyword combinations.

    With the help of Red Points’ Brand Protection software, you can rest easy knowing that your products are safeguarded around the clock.


    Federal trademarks, often known as those that are registered by the United States Patent and Trademark Office (USPTO), come with a substantial number of legal rights and exclusive remedies. However, to maintain them, you will need to ask other businesses to stop infringing on your trademarks pro-actively. This is a letter with a C&D prefix.


    In the United States, a trademark registration needs to be renewed every ten years. Additionally, on the fifth and tenth anniversaries of a trademark’s registration, its owner must provide evidence that the mark is still in use.

    What’s Next

    Brand identity is essential in the fashion business. Fashion businesses, such as clothing lines, jewelry labels, and accessories, all rely on having a distinct brand identity to succeed. That’s why your brand is as vital as your style or your quality.

    With so much at stake, you must know how to protect your clothing brand.

    See how you can protect your fashion designs with Red Points’ Brand Protection Software.


    You may like...

    8 fashion brands employing lateral thinking to counterfeit issues
    [Webinar] Image recognition versus fashion infringements
    6 methods successful brands use to increase revenue in ecommerce