You’ve got a great print design, now how do you protect it?
With the increase in companies that provide print-on-demand services, your ability to design and sell apparel and accessories has never been easier. So let’s say you’ve designed a fun T-shirt or mug, what’s to stop the next online shop from printing your design and selling it as their own?
COPYRIGHT
First, it’s important to note that currently copyright does not protect names, titles, slogans, or short phrases. In some cases, these things may be protected as trademarks. Copyright protection may be available for logo artwork that contains sufficient authorship. In some circumstances, an artistic logo may also be protected as a trademark.
TRADEMARK
OK, so let’s say your work is just a phrase or slogan and not eligible for copyright protection, what now? Well, as the USPTO recommends, your slogan might qualify for trademark protection. US trademarks are how customers recognize your business in the marketplace and distinguish you from your competitors.
Sounds straightforward enough, but therein lies the tricky bit, a trademark is meant to identify your business. If I pick up a T-shirt that says “Love is Love”, I, as a consumer, don't tend to think that the company that made or distributed this shirt is called Love is Love, Inc. This is a prime example of why the USPTO may send you an “Ornamental” refusal if you tried to trademark this slogan.
The USPTO might issue an ornamental refusal in response to your trademark application when the use of your mark does not clearly identify the source of your goods and distinguish them from the goods of others. But what if your slogan is so emblematic of your brand, that a consumer immediately thinks of your business upon hearing it? Think, “Just Do It” or “Where’s The Beef”.
Just because you received a rejection from the Office, doesn’t mean all hope is lost. This is, *cough cough*, where having an attorney to help you along might come in handy. Maybe this slogan really is your business name and you can show that by using the name on tags for sales or inside the garment. Perhaps we can obtain customer statements about how everyone knows your company through this slogan. And, there’s always the Supplemental Register where your mark will not receive all the same legal advantages as marks on the Principal Register, but it will be protected against conflicting marks in later-filed USPTO applications, giving you time to build evidence of distinctiveness.
TRADEMARK APPLICATIONS
As with all trademarks, it is important to remember that with the USPTO, your trademark application is always subject to a clearance process. With an attorney filing your application, you will have help in navigating the Office’s rejections.
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