“I have a REALLY great t-shirt idea.” “I’ve got an idea for a funny t-shirt slogan.” Many an IP attorney has heard this phrase at least once. Just like protecting an idea can be difficult, it’s challenging to protect a t-shirt idea. But a lifestyle brand? Now you’re talking. But be proactive: know how to safeguard the protectable elements of a t-shirt or lifestyle brand.
Quickly: What’s Protectable about a T-Shirt Idea?
The usual suspects. The brand name might be protectable as a trademark. A graphic design that appears on the apparel could be registrable with the Copyright Office as 2-D artwork. Website code and related graphic designs could be eligible for copyright protection, too.
A Funny Saying Is Not Enough
(A Cool Slogan Isn’t Enough to Protect a T-Shirt Idea)
A slogan isn’t enough. What do brands like Life is Good, SaltLife, and even Lululemon and Patagonia have in common? Their apparel is not the main selling point. A lifestyle brand about more than the quality of the clothing or hats on which its logo appears. A brand has to signify something. Branding experts will tell you that your brand can’t just be your product, it has to be a feeling — a message and promise that you make to your customers. They’re right. However, for trademark purposes, you simply don’t have a trademark unless you offer something (a product or service) under your brand name. You need a “trademark use.” Lululemon isn’t just about yoga and wellness. At the end of the day, it’s a clothing brand. All of Lululemon’s products bear a hangtag that say LULULEMON.
A Design Across the Front Is Not Enough*
Beware of Ornamental Use
The Trademark Office might consider a slogan displayed across a t-shirt may as “ornamental” and not a “trademark use.” In other words, if all you do is write some words across a t-shirt, you probably don’t have a protectable trademark. (Don’t believe me? See for yourself.) This doesn’t mean that you can’t create a t-shirt with words written across it. It just means that, like Lululemon, you have to use the mark as a trademark. In other words, the mark has to appear where trademarks traditionally appear — maybe below the neck on the back of the shirt, on a hangtag, or above the breast pocket on a shirt. The same rules apply to a cap: the mark shouldn’t just appear across the front of the cap, but also on the back, above the loophole.
The *: As stated previously, if the slogan has some design elements to it and consists of a graphic design, it might be protectable under U.S. copyright law. In other words, it’s worth registering with the Copyright Office.
What’s Protectable About These Brands?
Thanks to the incredible photograph resource Unsplash, I’ve gathered a few stock photographs to provide some examples of the protectable elements of a t-shirt or lifestyle brand.
|This could be considered an ornamental use. If the word (or overall design) appears on a hangtag, that should allow this (presumably imaginary) brand to clear the hurdle of trademark protectability.|
|This intricate design could be considered 2-D artwork and thus registrable with the U.S. Copyright Office.|
|We can't tell from this photo what the back of the cap looks like, but if this company is trying to protect a brand under LOVE YOUR NEIGHBOR, it'll likely have to do more than just display the words across the front of the cap.|
|This, like the flower shirt above, might qualify as a graphic design and fall under copyright territory. If CUSTOM QUALITY is asserted as a trademark, there should be a hangtag or "traditional" placement for the mark.|
The Point: Think brand, not “funny slogan” if you want to protect a t-shirt idea. Use your word or phrase in the places where trademarks are traditionally found. And if your brand incorporates original graphic designs? Consider protecting those, too.
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