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The Zest

Class 25 or Class 35? When a clothing brand that sells online needs both, and when it doesn't

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If you design clothing and sell it under your brand, Class 25 is the class you need. Class 35 covers retail store services, including online stores, and a brand that only sells its own garments through its own site usually doesn't need to pay for it. The exception is a brand whose shop is a real retail operation, carrying other labels or running a marketplace, where the store name is doing work the garment label doesn't.

That's the answer. The reasoning matters, because the question comes up on almost every apparel consult I do, and "file in both classes" rarely comes with an explanation of what the second class buys you.

Two different things with the same name on them

A trademark identifies goods. A service mark identifies services. The Lanham Act defines them separately, and the USPTO files them in different classes. When your label is sewn into a hoodie, the brand is functioning as a trademark for the hoodie, and the hoodie is a Class 25 good. When the same name sits at the top of a website where customers browse and buy, you can ask whether it's also functioning as a service mark for a retail store.

Class 35 is where retail services live. The Nice Classification's explanatory note describes the service as "the bringing together, for the benefit of others, of a variety of goods," so customers can "conveniently view and purchase those goods," and it says those services may be provided through "websites or television shopping programmes." That's the legal description of a store, online or otherwise.

Is selling your own clothes a service?

Here is the part that trips people up. The TMEP says "a service must be performed to the order of, or for the benefit of, someone other than the applicant," and that "a company that promotes the sale of its own goods or services is doing so for its own benefit rather than rendering a service for others." Read on its own, that sounds like selling your own t-shirts can never be a Class 35 service.

It's not that simple. The TMEP goes on to say the "controlling question is who primarily benefits from the activity," and it cites a 2024 Trademark Trial and Appeal Board decision, Blizzard Entertainment v. Ava Labs, that treated online retail store services featuring the applicant's own goods as a service that "primarily benefitted consumers by providing a central location for finding, examining, and purchasing various goods." So a brand's own online shop can qualify as retail store services.

Whether it can be registered and whether it's worth registering are different questions.

What a Class 35 registration adds, and what it doesn't

The thing most founders are buying when they add Class 35 is protection against someone opening a store under a similar name. You mostly already have that. The TMEP puts it plainly: "confusion is likely where one party engages in retail services that sell goods of the type produced by the other party," quoting the Federal Circuit's 2018 decision in In re Detroit Athletic Co., where clothing retail services were found related to clothing goods. A registration for your brand in Class 25 is a basis to block a confusingly similar mark for a clothing store in Class 35, because the goods and the services are related. Class boundaries don't limit your rights; the statute says the class system is "for convenience of Patent and Trademark Office administration" and "not to limit or extend the applicant's or registrant's rights." I explained that in the article on what a trademark class is.

What Class 35 does add is a registration that names the retail service itself. That matters when the store is the business. If you carry other designers, run a curated marketplace, operate a boutique with its own name that differs from your house label, or plan to license the store concept, the store name is a separate asset and deserves its own filing.

The costs you'd be paying

Every class is its own fee. The USPTO's base fee is $350 per class, so Classes 25 and 35 together are $700 at filing. If you file on intent to use, the Statement of Use is $150 per class. Section 8 maintenance between years five and six is $325 per class, and the ten-year renewal is $650 per class. Over a decade, the second class roughly doubles every government fee on the registration. I ran through the full fee picture in the article on 2026 USPTO fees.

There's an examination cost too. A retail services identification has to name the goods featured: the TMEP requires "specification of the goods featured," so the entry reads "online retail store services featuring clothing" rather than "retail services." And you need a separate specimen for the services. A photo of your neck label proves Class 25. It proves nothing in Class 35. The service specimen has to show "a direct association between the mark and the services," and the TMEP says registration must be refused "if the specimen shows the mark is used only to promote goods" rather than the identified retail service. A web page that reads as a brand's product catalog can draw that refusal. I covered how the two kinds of specimens differ in the article on specimens.

When I'd file both

  • You sell other brands alongside your own. The store is a real retail service for third parties, and the service mark protects something Class 25 doesn't describe.
  • Your shop has a different name from your clothing label. Each name needs its own protection, and the shop name is a service mark.
  • You're building toward physical retail, pop-ups, or franchising the store concept. The retail services registration is the asset you'd license.
  • Your clothing is a small part of a wider marketplace. The marketplace is the business; the garments are inventory.

When Class 25 alone is the right call

  • You design and sell your own line, under one name, through your own site and a few wholesale accounts.
  • Your budget covers one class comfortably and two classes only if you skip the search. Spend the money on the search first.
  • Your product list is still changing. Get the core garments covered in Class 25, and revisit Class 35 when the store is settled.

The wrong move is filing Class 35 as insurance without a specimen or a business reason behind it. You pay for the class, it draws a specimen refusal, and you drop it. That money was better spent on getting the Class 25 description right, which is the piece that defines your rights. I wrote about building that list in the article on goods and services descriptions.

If you want to talk through whether your shop is a store or a label, you can see how the search and filing packages work on the services page, and the FAQs page answers most of what comes up before a first call.

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(No legal advice is given on the discovery call. It's a chance to tell me what you're building and hear how the process works.)

Sources

This article is general information, not legal advice. Reading it does not create an attorney-client relationship.

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