T-Shirt Design Trademark Registration – Specimen Recommendations and Avoiding Ornamental Refusal
Can You Register a T-Shirt Design as a Trademark? Yes!
People often wish to register t-shirt designs as trademarks to prevent others from selling copies. However, the t-shirt design is insufficient, without more, to function as a trademark and the application may be rejected. Trademark attorneys refer to this as the “ornamental refusal“.
Avoiding an Ornamental Refusal
When considering what a trademark is – it helps the consumer identify the source of goods and/or services – the ornamental refusal makes sense. Consider this dragon t-shirt. Does that dragon indicate the maker of the shirt, or is the dragon just a decoration? You might be thinking, it depends. If you previously saw this design used to advertise a clothing brand, then it may have some meaning to you. Otherwise, it’s just a dragon. That is exactly correct. If the design has been used elsewhere and has acquired “secondary meaning,“ then it can go on a t-shirt and still function as a trademark.
I have successfully argued that a musical performer’s logo, when previously used to advertise live shows and recorded music, functions as a trademark when placed on a t-shirt. Another common example is a clothing brand. If you put the words Louis Vuitton, Supreme, or Gap on a shirt, you certainly know who made it.
A solution to Ornamental Refusal – Hang Tags or Clothing Labels
There is an easier way to get a clothing design protected, assuming you cannot obtain a copyright registration, which may also solve all your problems. As a specimen of use, submit a photo of a hang tag or clothing label, with your design, affixed to the clothing.
Creating a hangtag with your design and affixing it to your clothing is inexpensive and easy. You can order 500 blank hang tags and print them with your design. Do not have a printer that can handle hang tags? Print your design on a sheet of stickers and stick them to the hang tags. Check out these kits for sale on Amazon.com, Uline.com, and Staples.com. Hangtags can also be custom printed. As with the JUNK FOOD shirt, which I recently purchased, the hangtag can be safety pinned to the clothing without a special machine.
Use in Commerce
The hangtag, properly displaying the trademark, should be used consistently as soon as possible, and evidence should be saved of interstate sales of clothing with the hang-tag. I recommend saving the buyer’s out-of-state contact information.
To read more about trademark registration generally, check out my article HERE. For more information about branding, subscribe to the BRAND INNOVATION BLOG.
If you have any questions, please feel free to contact attorney Eric Eagle Hartmans at (310) 954-8512 or ehartmans@hartmanslaw.com.
