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How to trademark a clothing brand: Class 25, the description, and what happens after you file

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To trademark a clothing brand, you file a federal application with the USPTO that names the brand, lists the specific garments you sell in Class 25, and either shows the brand in use or declares that you intend to use it. The USPTO's base fee is $350 per class. Then you wait, because the first review takes months, and the application moves through a set of steps that most founders have never seen described in order.

That's the short version. The mistakes I see with apparel brands happen in the parts people skip, so here is the long one.

Class 25 is where clothing lives

The USPTO sorts goods and services into 45 classes, and clothing, footwear and headwear are Class 25. The current edition of the Nice Classification, which the USPTO follows, states the Class 25 heading as "Clothing, footwear, headwear." The explanatory notes carve a few things out: protective helmets and clothing for protection against fire belong in Class 9, and clothing for animals belongs in Class 18. If you sell a dog hoodie alongside your human hoodies, those are two classes.

I wrote about what a class does and doesn't do in the article on trademark classes. The one-line version is that the class is a filing drawer. Your rights come from the goods you list and the mark you use, not from the drawer number.

You can't just write "clothing"

Here is the part that surprises people. The USPTO will not accept "clothing" by itself as your list of goods. The Trademark Manual of Examining Procedure (TMEP) says the identification must be "specific, definite, clear, accurate, and concise," and the only time the word "clothing" stands alone is when an applicant commits to "a full line of clothing," meaning virtually everything in the class. Otherwise you have to name the items by their common commercial name: "clothing, namely, t-shirts, hoodies, and hats."

Two things follow from that. First, "etc." is not allowed; the TMEP uses "clothing, namely, socks, shorts, and t-shirts made of cotton, etc." as its example of an indefinite identification. Second, the list only goes one direction after filing. The TMEP is blunt about it: "the identification cannot later be expanded." You can delete items or narrow them. You cannot add the swimwear line you launch next spring. That goes in a new application.

The USPTO also charges for how you write the list. If you pick entries from its ID Manual, the base fee of $350 per class applies. If you type your own wording in the free-form box, the USPTO adds $200 per class, and another $200 for each additional 1,000 characters. For most clothing brands the ID Manual has what you need.

Use it now or file on intent to use

An apparel application rests on one of two bases. If you're already selling shirts with the brand on them, you file under Section 1(a) based on use in commerce and include a specimen, which is a real example of the brand on the goods: a photo of the neck label, a hang tag, or a product page with an add-to-cart button. I go through what qualifies in the article on specimens.

If you haven't launched, you file under Section 1(b) based on a "bona fide intention" to use the mark, which is the statute's phrase. That gets your filing date on the record before your first drop. You prove use later, and you pay for that later step: the USPTO charges $150 per class to file a Statement of Use. I covered the strategy around that in the article on intent-to-use applications.

One warning specific to apparel. Putting your brand name in big letters across the chest of a shirt is often treated as decoration, not as a trademark. The USPTO calls this an ornamental refusal, and the TMEP says a "small, neat, and discrete" word or design over the pocket can create a trademark impression, while "a larger rendition of the same matter emblazoned across the front of a garment" may be seen as ornamentation. In an intent-to-use application, that refusal usually waits until you submit your specimen, so plan the label and tag placement now. I wrote more about it in the article on ornamental refusals.

What happens after you file

The USPTO publishes a timeline for each filing basis, and the steps below come from it.

  1. You file and get a serial number. Nothing happens for a while. The USPTO says it takes about six to nine months before an examining attorney picks up the application.
  2. The examining attorney reviews it in about a month and either approves it or sends an office action.
  3. If you get an office action, you have three months to respond, with a paid three-month extension available. Miss the deadline and the application is abandoned. The examining attorney then takes one to two months to review your response.
  4. If the application is approved, it publishes in the Trademark Official Gazette about a month later. Anyone who thinks your mark conflicts with theirs has 30 days from the publication date to file an opposition.
  5. For a use-based application, if no one opposes, the registration issues about three months after publication.
  6. For an intent-to-use application, the USPTO instead issues a Notice of Allowance within about two months of publication. You then have six months to file your Statement of Use with a specimen, or to request a six-month extension. You can file up to five extensions. Once the Statement of Use is approved, registration follows in about two months.

A clean use-based filing runs roughly a year. Intent to use adds however long you take to launch.

After registration

The registration isn't permanent on its own. Between the fifth and sixth year after registration you file a Section 8 declaration showing the mark is still in use, currently $325 per class. Within the year before each ten-year anniversary, you file a combined Section 8 and 9 renewal, currently $650 per class. Each has a six-month grace period with an extra fee. Skip them and the registration is canceled.

What this means for your brand

Before you file, settle three things: the exact brand name or logo you'll put on labels, the list of garments you sell or will sell in the next year or so, and whether you're filing on use or intent. Then design your labels, tags and product pages so the brand reads as a brand and not as the graphic on the shirt. Those decisions are cheap now and expensive after an office action.

If you want to talk through how a clothing line gets classified and described, 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.

Book a free 15-minute discovery call with the attorney (opens in a new tab)

(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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