If you’re a designer, a band, or anyone else making and selling apparel, one of the biggest, scariest mistakes you can make is confusing Decoration with Brand Identification.
The Ornamental Trap
To be granted trademark registration, the mark must function as a source identifier. That means consumers must look at the name, logo, or slogan and think: “This is the company that made or sold this.”
Here’s the terrifying truth about apparel:
- Ornamental Use is Decoration, Not a Brand: If you print a catchy phrase (like “STAY CREEPY”) or a large design prominently across the front of a shirt, the USPTO will usually consider that ornamental use (decoration). People buy it because they like the saying, not because they think the saying is the name of the clothing manufacturer.
- No Exclusive Rights for Decoration: Unless your mark is already famous (like Nike’s JUST DO IT), you cannot stop others from using the exact same phrase ornamentally on their You were just the first to decorate.
How to Prove You’re a Brand, Not Just a Decorator
To get your mark federally registered on the Principal Register, you must show proper trademark use. Consumers are conditioned to look for the brand in specific, subtle places.
The Ghost (Ornamental Use)
- A large, dominant logo on the chest or back.
- A catchy, full-front slogan (e.g., “Too Spooky for this Planet”).
- The design on a coffee mug or poster (decoration).
The Source (Trademark Use)
- A small, discrete logo on a pocket or breast.
- The name on a sewn-in neck tag or label (where the size and washing instructions are).
- The brand name on a hang tag, sticker, or the packaging used to hold the item.
If you’re building a clothing line, make sure your brand name or logo is visible in the source-identifying location on the garment itself (the tag, the collar, the hem). That’s your best proof that your mark is an actual trademark, not just a spooky apparition!
The legal horror stories I’ve seen almost always follow the same plot: someone built something valuable and didn’t protect it, or signed something they didn’t understand, or waited until the damage was already done. You don’t have to be in that kind of story.
I help entrepreneurs, creators, and small business owners across the U.S. make smart, legally sound decisions about their IP: patents, trademarks, copyrights, and trade secrets. For Illinois clients, I also handle business formation and transactions.
Book a consultation at kingpatentlaw.com or call 217-714-8558.
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