Branding vs. designs in the clothing business

I have represented several clients in the apparel industry. I recently had a consultation with a client that was planning to start a business that sold clothing. Several issues came up during that consultation that are common issues among businesses selling clothing. One of those issues was branding vs. designs.

Often entrepreneurs will often say that they have a great idea for a name or design for their brand which they will put on the clothing they sell. They have a great tag line or design and want put it on t-shirts or some other article of clothing and they will want to protect that tag line or design from being taken by a competitor.

However, they are confusing branding with clothing designs. Branding is the establishing of a trademark or trade name under which a product is sold. The trademark or name identifies the source of the product. Victoria's Secret is the trade name (the brand) for a company that sells women's lingerie. It is the name on the tags on the clothing sold.

On the other hand, the designs, including words, that are placed on clothing are not legally considered trademarks or trade names. Designs are ornamental and not trademarks in that they do not designate the source of the clothing.

Trademarks and trade names are legally protected and can be registered. Designs can not be legally protected in the same way. Unique designs on clothing can be protected under copyright law as long as the design is not part of the clothing design. Clothing designs can not be protected under copyright law.

The bottom line for entrepreneurs in the apparel industry is that they must make a distinction between their brand (that is the trade name of their clothing line) and the designs that they put on their clothing. Of course, sometimes brands will be placed directly on clothing. "Guess" puts its brand directly on its jeans but that brand is also on the clothing tag. Designs without a brand attached to them do not build goodwill.

The distinction is important because designs come and go but brands can be established and remain. For that reason, I advise apparel industry entrepreneurs to focus on their brand and think more in terms of how their designs will promote the brand. This makes for a stronger, legally protectable brand and is good marketing as well.