Ornamental Refusal? Wait… what?

Is your apparel graphic a “brand identifier” or just decoration? An ornamental refusal is when the USPTO refuses registration of your trademark because the specimen submitted with your application shows the use of your mark merely as an “ornamental” or decorative use on the goods and not as a trademark to indicate the source of the goods.

Trademarks are used to identify a product’s origin and tell you a bit about it – usually who made the product and a certain level of quality. In order to file a trademark for apparel, you must be using the proposed wording or design to identify that clothing as belonging to the trademarked brand, not just as embellishment. Logos, slogans, or branding that are exclusively decorative do not identify and distinguish goods and do not act as a trademark.

For example: a Ford logo can be used to identify a Ford truck. But that same logo on a t-shirt does not identify it as a brand of clothing (failing to indicate, for instance, quality, country of origin, etc.). Instead, this logo is being used as a decoration to appeal to people that like the Ford brand.

On the other hand, a polo shirt featuring the Lacoste crocodile on the breast creates the impression of a trademark – identifying the brand as that of the French clothing company Lacoste.