In order to apply for a patent in the United States, you’ll need to know which trademark class your intellectual property (IP) falls into. These 45 classes exist to regulate infringement cases within industries and determine what your rights are as the holder of a trademark. Thus, choosing your class correctly is one of the most important parts of any trademark application.
In this article, we’ll talk about class 25 trademark goods. This trademark class includes clothing of all kinds. We’ll also go over some of the specific issues that clothing-related IP holders might run into during the application process.
Should I Apply for a Class 25 Trademark?
As you may already know, US law makes clothing designs notoriously difficult to patent. For that reason, many people interested in fashion assume that they also shouldn’t apply for trademarks related to their brands. However, nothing could be further from the truth. In fact, intelligent use of trademarks is vital for any successful fashion brand.
Part of the confusion stems from the terms being used. While patents typically protect the designs of new products, trademarks are meant to protect branding and distinguishing features. If other companies sell products with logos, slogans, or other marks that are too similar to your own, they may be committing trademark infringement.
However, trademarks only protect your company from infringement within the same class. A class 25 trademark, in other words, will only protect you from infringement by other clothing companies. That’s why it’s so important to choose the correct class when applying for a trademark.
Note that you can apply under multiple trademark classes. However, this is more expensive than applying in a single class. Additionally, the U.S. Patent and Trademark Offices (USPTO) rejects applications that fail to justify their choice of classes.
What Are Class 25 Trademark Goods?
In general, trademark class 25 applies to all types of clothing. This includes uniforms, costumes, swimwear, and all types of footwear. Packaging for clothing is also covered under trademark class 25 and doesn’t need to be applied for separately.
There are a few types of clothing-related products that aren’t class 25 trademark goods. Branding related to the following products does not fall under trademark class 25:
- Jewelry, including costume jewelry, falls into trademark class 14 (precious metals).
- Threads, fabrics, and other raw materials generally fall into trademark class 23 (yarns and threads) or 24 (textiles).
- Lace materials, as well as shoelaces, falls into class 26 (lace and embroidery).
- Finally, services related to clothing (such as tailoring services) fall into one of the service classes (35-45), depending on their clientele. This includes custom printing services, which are most often class 35 services.
What if Someone Else Has a Similar Trademark?
Before you apply, it’s important to check your trademark against the USPTO’s free online trademark database. The USPTO rejects applications for trademarks that infringe on those already in the database. However, as we’ve said, this depends on trademark class. You only need to worry about your trademark being too similar to other marks in the same general sector.
So what should you do if you find a trademark that seems similar to your own? Unfortunately, the USPTO does not offer guidance or advice prior to filing. Instead, you’ll likely want to contact a trademark lawyer.
An experienced trademark lawyer will be able to determine whether or not your trademark seems likely to infringe on another. They can also help you develop solutions to that problem, which might involve changing your branding or filing under another trademark class.
What Do I Do After I Apply?
After you apply for your trademark, it usually takes several months or more to hear back from the USPTO. However, even after your trademark is approved your work isn’t done yet: you now need to worry about maintaining your trademark.
Basically, you lose the right to a trademark if you don’t use it to fight infringement. This means submitting regular paperwork to the USPTO demonstrating that your trademark is in use. It also means answering infringement in a formal legal manner (usually through cease and desist letters and pursuing legal action against infringers). This is another place where a dedicated trademark lawyer can help your brand grow.
Unfair Trade Practices
Having a trademark will also protect you from unfair trade practices, such as counterfeiting, creating knock-offs, or unauthorized reselling. Basically, any trade practice that capitalizes on customer confusion is likely to be an unfair trade practice, and grounds to take legal action. Again, this is a use it or lose it situation: if the USPTO determines that you knew about and failed to fight unfair trade practices, you can lose your trademark.
However, not every use of your brand is necessarily infringement. As long as they don’t create unreasonable customer confusion, the USPTO considers parody, nominal use, and a small number of other practices fair.
Note that “nominal use” includes using the name of your product for the purposes of comparison. So, for example, a company can use your brand’s name in an ad if they are comparing it to their own products.
As you can see, the benefits to applying for a trademark outweigh the costs for just about any brand. This is doubly true in the clothing sector, where other forms of legal protection are hard to come by.
That being said, you should strongly consider getting in touch with a lawyer before submitting your application. By doing so, you’ll protect your brand and prevent intellectual property issues down the line.