Historically, clothing is one of the most commonly applied-for categories of goods at the USPTO. However, demonstrating proper use of a trademark on apparel is not as straightforward as it may seem. Often, trademark applications for apparel get rejected based on “ornamental use,” meaning that the mark is functioning as decoration, rather than a trademark. Other products that are often rejected based on mere ornamental use include mugs and cups, umbrellas, backpacks and other promotional items typically given away free for advertising purposes.
What is Ornamental Use?
Ornamental use most often includes words, logos, or trade dress (packaging design). Since the purpose of a trademark is to identify the source of the goods, your marks must be used in a way that communicates to the consumer the source of the products, not as mere decoration. In accordance with trademark regulations, words or logos on an item seen by the consumer as a decorative feature does not identify and distinguish your company as the source. Simply put, decorative use does not function as a trademark and is considered “ornamental.”
An Example
The most common ornamental use example is where the brand name or logo is displayed gigantically on the front or back of an item of clothing. When displayed in a large format, they are typically viewed by the USPTO as primarily a decorative or ornamental feature of the apparel, rather than identifying the source of the goods.
Use Your Brand Correctly
There are options to demonstrate use of a mark in connection with products bearing your brand (some options do not even require you to change the large image on an apparel item).
- Display the mark on an e-commerce website close to where the items are offered for sale.
- Display the mark on a hang tag attached to the product.
- Display the mark on an inside label on the product.
- Display the mark in a small, neat, and discrete manner on the item. For example, on clothing, on the breast, hem, or sleeve.
Overcoming an ornamental refusal can be difficult. But, by using your mark correctly from the outset, applicants can successfully argue that the mark is a source indicator and not merely a decorative feature.
