You Can’t Protect a T-shirt Idea (But You Can Start a Lifestyle Brand)
“I have a REALLY great t-shirt idea.” “I’ve got an idea for a funny t-shirt slogan.” Many an IP attorney has heard this phrase at least once. Just like protecting an idea can be difficult, it’s challenging to protect a t-shirt idea. But a lifestyle brand? Now you’re talking. But be proactive: know how to safeguard the protectable elements of a t-shirt or lifestyle brand.
Quickly: What’s Protectable about a T-Shirt Idea?
The usual suspects. The brand name might be protectable as a trademark. A graphic design that appears on the apparel could be registrable with the Copyright Office as 2-D artwork. Website code and related graphic designs could be eligible for copyright protection, too.
A Funny Saying Is Not Enough
(A Cool Slogan Isn’t Enough to Protect a T-Shirt Idea)
A slogan isn’t enough. What do brands like Life is Good, SaltLife, and even Lululemon and Patagonia have in common? Their apparel is not the main selling point. A lifestyle brand about more than the quality of the clothing or hats on which its logo appears. A brand has to signify something. Branding experts will tell you that your brand can’t just be your product, it has to be a feeling — a message and promise that you make to your customers. They’re right. However, for trademark purposes, you simply don’t have a trademark unless you offer something (a product or service) under your brand name. You need a "trademark use." Lululemon isn’t just about yoga and wellness. At the end of the day, it’s a clothing brand. All of Lululemon’s products bear a hangtag that say LULULEMON.
A Design Across the Front Is Not Enough*
Beware of Ornamental Use
The Trademark Office might consider a slogan displayed across a t-shirt may as “ornamental” and not a “trademark use.” In other words, if all you do is write some words across a t-shirt, you probably don’t have a protectable trademark. (Don’t believe me? See for yourself.) This doesn’t mean that you can’t create a t-shirt with words written across it. It just means that, like Lululemon, you have to use the mark as a trademark. In other words, the mark has to appear where trademarks traditionally appear — maybe below the neck on the back of the shirt, on a hangtag, or above the breast pocket on a shirt. The same rules apply to a cap: the mark shouldn’t just appear across the front of the cap, but also on the back, above the loophole.
The *: As stated previously, if the slogan has some design elements to it and consists of a graphic design, it might be protectable under U.S. copyright law. In other words, it’s worth registering with the Copyright Office.
T-Shirt Roulette
What’s Protectable About These Brands?
Thanks to the incredible photograph resource Unsplash, I’ve gathered a few stock photographs to provide some examples of the protectable elements of a t-shirt or lifestyle brand.
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The Point: Think brand, not “funny slogan” if you want to protect a t-shirt idea. Use your word or phrase in the places where trademarks are traditionally found. And if your brand incorporates original graphic designs? Consider protecting those, too.