Don’t Get Caught With Your Pants Down: Cover Your Assets By Registering Your Brand Name

by Wendel, Rosen, Black & Dean LLP

Whether you aspire to grow your fashion line to become as recognizable as Chanel, Louis Vuitton, Yves Saint Laurent, or you have more modest aspirations for your fashion line, this article is for you.  When you see or hear these brand names, what comes to mind?  For me, I equate these brand names with decades of high fashion, luxury goods, and my empty bank account.  For these fashion houses, their brand names have become one of their most important and valuable assets because these brand names are well-recognized among consumers and promise consumers certain value of high fashion and quality goods.

To protect their valuable assets, these fashion houses have registered their trademarks with the United States Patent and Trademark Office (the “USPTO”) to stake their claim on the trademark and to prevent others from infringing on their trademark by creating and selling counterfeit goods on the black market.  Like these fashion houses, you should consider registering your trademark as early as possible to maximize its protection.

I thought we were talking about brand names?  How did “trademark” come into the picture?

A trademark is a brand name that includes any word, name, symbol, device, or any combination used to identify and distinguish your fashion line from others.  Chanel, Louis Vuitton, and Yves Saint Laurent are examples of famous trademarks.

What if I already use my trademark with my fashion line?

By simply using your trademark in connection with your fashion line, you have already established your common law rights in the trademark.  You may use the “TM” (trademark) designation to alert the public that you claim rights in the trademark.  See below for some examples on how to use the “TM” (trademark) designation  Please keep in mind that you must continuously use the trademark in connection with your fashion line in order to maintain your common law rights.

LV   Chanel

Great! I have rights already, so why am I still reading your blog post?

Although you have established your common law rights by actually using your trademark in connection with your fashion line, your common law rights are limited to the geographical area of where the trademark is used.  So if another fashion designer comes along and registers your trademark on the federal level, he will have rights in that trademark throughout the United States except the limited geographical area where you use the trademark or where you would reasonably be expected to expand.  Also, if you register your fashion design trademark you will have these additional advantages:

  1. A legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration;
  2. Public notice of your claim of ownership of the trademark;
  3. Listing in the USPTO’s online databases;
  4. The ability to record the U.S. registration with the U.S. Customs and Border Protection Service to prevent importation of infringing foreign goods;
  5. The right to use the federal registration symbol “®”;
  6. The potential to recover treble damages, attorneys’ fees, and under certain circumstances, statutory damages, even if you cannot prove actual damages;
  7. The ability to bring an action concerning the mark in federal court; and
  8. The use of the U.S. registration as a basis to obtain registration in foreign countries.

Simply put,  federal registrations with the USPTO will offer you the most protection for your trademarks.  So don’t get caught with your pants down, cover your assets by registering your brand name.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Wendel, Rosen, Black & Dean LLP | Attorney Advertising

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