United States

A trademark is a brand name, logo, style name or other source-identifying feature of a brand or design. A strong trademark, in a single word, symbol or design, may convey a wide range of attributes about a product to consumers. For example, when consumers see the “LV” monogram on a handbag, they immediately recognize the Louis Vuitton products and can quickly make a reasonably informed decision about whether to purchase them. Trademarks are among a fashion company’s most important assets. They allow a business to distinguish its goods from goods produced by others and to police other companies that take advantage of its goodwill. Unlike other IPRs, trademark rights last indefinitely, so long as the marks are being used. Protection attaches as soon as the mark is used in commerce, even if the mark has not been registered, although the rights are limited in scope without registration; companies with concrete plans to use a mark may also seek an “intent to use” registration.

Several types of trademarks are relevant to fashion:

• House marks identify the provider of a wide variety of goods, such as KATE SPADE. When federally registering a house mark, this intention must be expressly indicated in the application, and examples of use as a house mark and indication of the goods encompassed must be included.
• Product styles range from the names of specific fashion lines, to products, to design elements, to sub-brands. Companies should weigh the benefits of registering each of these and remember to clear all of them regardless.
• Personal names are often used to identify brands, such as TORY BURCH. Before these names can be registered, they must achieve acquired distinctiveness, that is, must be recognized by consumers as source-identifying to the business. Use of personal names for a brand may later impair designers’ ability to use their name in connection with separate ventures if they leave the company that holds the rights. To the extent a personal name is used, the parties involved should carefully consider the interplay between the trademarked name and the designer’s right of publicity.
• Foreign names are often used as brand identifiers. To register these, companies should ensure that the translation (as well as the mark itself) does not conflict with other already existing marks.
• Trade dress is particularly important because it is one of the few mechanisms to protect the overall appearance of designs and packaging and the visual features incorporated into clothing and other goods. It protects unique design elements, such as color, shape and patterns, including Louboutin’s red-soled heels, Burberry’s plaid and Hermés’ H-shaped fixtures. Trade dress must be non-functional and distinctive. For product design, acquired distinctiveness is necessary. Relevant evidence may include unsolicited media coverage, advertising examples, sales/advertising figures and consumer surveys. Proving acquired distinctiveness can be challenging and resource consuming. With the rise of “dupes” culture, having distinctive and protectable trade dress rights has become increasingly important.

Trademark monitoring and enforcement is critical. Enforcement typically occurs in federal court and causes of action include infringement, dilution and counterfeiting:

• Infringement occurs when there exists a likelihood of confusion between marks.
• Dilution occurs when a famous mark is used in a manner that weakens its uniqueness through “blurring” or “tarnishing” the reputation of the trademark’s source.
• Counterfeiting occurs through use of an identical or substantially indistinguishable trademark in a spurious manner (e., fake goods).

Enhanced damages are available for counterfeiting, willful infringement and dilution.

Fashion brands should be aware that, even when a mark is registered, creative expression, including expressive content, art and parody, may impact the ability to enforce. See Jack Daniel’s Properties, Inc. v. VIP Prods. LLC, 559 U.S. 140 (2023); Nike v. MSCHF, 21-1679 (E.D.N.Y. 2021). The right to free speech was “paramount” in the case where Nike sought to prevent shipments of “Satan Shoes.” Another issue mark holders may encounter is ornamental or functional use: if a mark does not signify the source of the goods but rather expresses decoration or affiliation (such as a sweatshirt bearing a university’s name and colors), the mark holder may not be entitled to protection. See Pennsylvania State University v. Vintage Brand, LLC, 21-CV-1091 (M.D. Pa. 2021).

Another developing area of law concerns customizations and recycling: while trademark holders normally cannot control resale of their goods, some have brought suit to prevent others from reselling customized or repurposed goods. See Nike, Inc. v. Custom by Ilene, Inc., 21-1201 (C.D. Cal. 2021) (customized Nikes); Louis Vuitton Malletier S.A.S. v. Sandra Ling Designs, Inc., 21-352 (S.D. Tex. 2021) (repurposed Louis Vuitton products). Although many of these cases ultimately settled, they pose important, largely unanswered questions about the degree of a brand’s control over its products once they have been sold.

Lastly, courts are grappling with the proliferation of low-cost “duplications” of popular styles (so-called “dupes,” previously referred to as “knock-offs”). These low-cost lookalikes often imitate a brand’s aesthetic or designs without overt counterfeiting. Social media has normalized the search for “dupes,” and consumer awareness of — and in some cases desire for — dupes has made it difficult to establish claims of trademark or trade dress infringement, which hinge upon a likelihood of consumer confusion. Another hurdle for brand owners is that dupes are often much lower in price and sold through different channels of trade than the branded products on which they are based. As a result, traditional likelihood of confusion factors that focus on channels of trade and product pricing may not weigh in the brand owners’ favor. See Benefit Cosms. LLC v. E.L.F. Cosms., Inc., No. 23-CV-00861-RS, 2024 WL 5135604, at *1 (N.D. Cal. Dec. 17, 2024) (no likelihood of confusion over Roller Lash mascara and Lash N Roll mascara despite similarities in name and trade dress because inspiration did not amount to an intent to deceive, particularly where there were also different prices and channels of trade). Rights holders should focus on arming themselves with a variety of IPRs to ensure the broadest protections possible, utilize technology to monitor for any “dupes,” and take appropriate actions to enforce their rights, including take-down actions, cease-and-desist letters, and other enforcement mechanisms like litigation.

The United States does not recognize design as an independent cause of action but features of a product’s design may be protected through trademark, copyright, or patent.

Copyrights are another important tool to protect fashion, but because they do not protect “useful articles” the protection is limited to certain fashion elements. Under this rubric, mechanical, functional or utilitarian characteristics of an object (including shape, contours, dimensions, specific cuts) are not protected, but original features that can be separated and exist independently may be. Examples of protectable elements include fabric prints, images placed on clothing, embroidery, lace, and sculpted features. Copyright protection typically lasts for the life of the author plus 70 years; for anonymous or pseudonymous works, or works made for hire, it lasts 95 years from first publication or 120 years from creation, whichever expires first. 

Copyrights are available only if the work was independently created and original, that is, it possesses a minimal degree of creativity — a low threshold. Even where the independent elements of a design are not sufficiently original, the specific arrangement or combination of elements may merit protection, such as a unique combination of lace patterns. As with trademark, copyright claims are subject to a number of expression-protecting defenses, including fair use, de minimis use and scenes a faire (i.e., the copied element is a classic or unavoidable element in a given genre).

Enforcement typically occurs in federal court. Infringement occurs when a valid copyright has been copied. The exact test for infringement varies by jurisdiction so it is important to research the law, but most jurisdictions require actual copying (i.e., the copier did not accidentally arrive at the same expression) and copying of the core original, expressive elements of the work. Copyrights may be registered at any time, but registration is a prerequisite for enforcement in federal court. Statutory damages are available if an owner registers its work either within three months of publication or before the infringement occurs. This is an important benefit because actual damages (in both the copyright and the trademark context) can be very difficult to prove.

Fashion companies need to pay attention to copyright ownership issues. Where a work is prepared by two or more authors with the intent to collaborate, a joint work is created. Joint owners cannot sue each other for infringement and cannot grant an exclusive license to the work but are otherwise free to use the work as they please. When employees within the scope of their employment create an original work, the works are considered “works made for hire” and the employers are the “author” of the works. But when contractors create works, without a special agreement stating otherwise, the contractors are the authors and owners.

Patents. United States fashion companies are increasingly turning to patents as an alternative and additional means of protection. The same product or design can be simultaneously protected by multiple patents, trademarks, and copyrights.

Utility patents protect underlying inventions — the way something is used or works. Fashion examples include innovative fabrics or processes, such as for manufacturing, securing/fastening or “slenderizing” appearances. Protection lasts for 20 years from the date of patent application filing.

Design patents, which are generally less expensive and easier to obtain than utility patents, protect the ornamental design (i.e., look and feel) of an article of manufacture. A functional design (i.e., a design whose appearance is dictated by the use of the article) is not entitled to protection. Similar to utility patents, a patented design must be novel or a non-obvious modification of prior art. In a precedential decision, the Federal Circuit (the federal court that specializes in patents) decided to re-consider whether the standard regarding an invention being “obvious” (and thus unprotected) should be merged for design and utility patents. See LKQ Corp. v. GM Glob. Tech. Operations, 22-CV-1253 (Fed. Cir. 2022). The Circuit concluded that design patents, like utility patents, should flexibly look at four different factors, namely: (1) the scope and content of analogous prior art, (2) the differences between the claimed design and prior art; (3) the level of skill of an ordinary designer in the field; and (4) any secondary considerations of non-obviousness. LKQ Corp. v. GM Glob. Tech. Operations LLC, 102 F.4th 1280 (Fed. Cir. 2024). The decision is thought to make design patents more difficult to obtain, enforce, and defend in the United States, but its full effects are still yet to be seen. Protection lasts for 15 years after the patent grant date.

Patents are primarily enforced through infringement actions in federal court. Infringement occurs when a party makes, uses, offers to sell, sells or imports the patented invention or design without authority; unlike with copyright, actual copying is not required for a patent action. Accused infringers often defend against infringement claims by alleging non-infringement, trying to limit the scope of the patent based on prior art, or seeking to invalidate the patent. Invalidation is a fact-specific inquiry and accomplished only by proving a specific defect, such as lack of novelty, obviousness, disclosure more than a year prior to patenting or, for design patents, functionality.

License agreements

Licensing agreements allow for use of another’s infrastructure and resources to produce products. They may involve different services, such as design, sourcing or production. Contracts are governed under state law according to standard contractual interpretation principles. Companies should pay close attention to choice of law provisions and, above all, ensure the terms are clear and unambiguous.

Key components of a licensing agreement include: the scope of the license; term and termination; compensation; buy-out rights and rights of first refusal/negotiation; confidentiality and trade secret protection; representations and warranties; and indemnification and insurance. Contracts should carefully set out the production process and quality controls, including: the roles and responsibilities of each party involved; approval rights; any expected collaboration; and rights to leftover goods/materials to prevent counterfeits. Terms governing the licensee’s code of conduct are also important, such as compliance with best industry practices for manufacturing and laws and regulations impacting labor, employment, non-discrimination, health, safety, and environment.

IPR clearance remains critical. In Gucci America, Inc. v. Guess?, Inc., 843 F. Supp. 2d 412 (S.D.N.Y. 2012), Guess was ultimately found liable for trademark infringement related to designs created and manufactured by Marc Fisher Footwear under a license. Stronger clearance processes required through the license — and by Guess itself — may have changed this result. Companies that do not monitor and control the goods produced under their IPRs may even lose their rights altogether; in trademark, this is referred to as “naked licensing.”

Non-disclosure agreements (NDAs)

NDAs protect disclosure of confidential information. They should unambiguously specify: which parties are bound; the information to remain confidential (especially IPRs like patterns, designs, sketches and samples; business information like branding, marketing and business plans; financial information; customer lists; creative processes and other know-how and/or trade secrets); all ways the protected information may be used; and steps to prevent and remedy accidental disclosure. Some manufacturers may be reluctant to take on the liability of an NDA if they produce items for several different brands; mutual NDAs may help alleviate the concern.

Subcontract agreements with suppliers/in-house manufacturing

Supply contracts and/or individual purchase orders with vendors for materials are essential. These are generally governed by state law, including the Uniform Commercial Code (discussed below). Companies sourcing goods internationally must be familiar with international law on commercial sales, such as the UN Convention of Contracts for the International Sale of Goods, as well as with import and customs issues.

Standard terms include: product description; pricing and payments; delivery and shipping; quality controls and inspection rights; workplace standards; ownership of IPRs; seller warranties; and governing law and dispute resolution. Like with licensing, vendor compliance with all applicable laws is essential to avoid later liability.

Fashion companies should clearly set out in their contracts when and under what terms subcontracting is permissible. Many fashion companies require approval rights over the selection of subcontractors. Provisions governing ownership of all IPRs created and trade secrets relied on are particularly important in these agreements. For instance, subcontracting arrangements are not automatically classified as works for hire, which may mean the subcontractor owns any copyrightable works created.

Agency agreement

An agency agreement authorizes an agent to conduct business on its behalf. Such agreements are typically governed by state law according to standard contractual interpretation principles. As with the other agreements discussed in this chapter, the parties should set clear and specific terms governing all aspects of the agreement, including, for example: the scope of the agent’s authority; the IPRs and other rights maintained by the principal; and confidentiality and trade secret protection and indemnification.

Selective distribution online in high-end fashion and trademark protection

Fashion companies should be aware of specific considerations for licensing in the sales and retail context. Brands may choose to control their reputation and exclusivity by preventing licensees from selling through certain distribution channels, such as discount stores or on the Internet. Failure to include clear terms specifying permitted retailers or categories of retailers, pre-approvals for retailers and/or limitations on where a distributor may sell and ship may lead to litigation. For example, Calvin Klein sued to terminate a licensing agreement with Warnaco after learning that its jeans were for sale in Costco, alleging breach of contract, trademark infringement and dilution. Warnaco countersued for breach of contract, and the high-profile litigation settled only on the eve of trial.

Other distribution provisions to consider include clauses that set out: specific territories for sales (and prevent gray market goods); locations of retail stores; guidelines for store design and staffing; management of excess inventory; product recall rights; and advertising and marketing requirements and approvals.

In general, once a product is sold to a customer, brands have little control over when and how it may be resold. As noted above, a company may bring a trademark infringement action if the reseller materially altered the product. Companies should also pay attention to misuse of their IPRs in online resale markets. For instance, in Chanel, Inc. v. The RealReal, Chanel accused a resale marketplace of selling counterfeit Chanel bags. The court found that the marketplace could potentially be liable for direct trademark infringement because it exercised some degree of control over whether and how the goods were sold. See Chanel, Inc. v. The RealReal Inc., 449 F. Supp. 3d 422 (S.D.N.Y. Mar. 30, 2020); see also Chanel, Inc. v. What Goes Around Comes Around, LLC, No. 18 CV 2253 (LLS), 2025 WL 1765857, at *4 (S.D.N.Y. June 26, 2025) (affirming jury verdict that defendant re-sale platform engaged in willful counterfeiting and awarding Chanel USD four million dollars in statutory damages and USD 12,739 in disgorgement of profits).

Co-branding and co-marketing

Fashion collaborations are increasingly common, necessitating the need for governing agreements. Brands should expressly identify the relevant IPRs to be used, as well as the parties’ respective rights to use the IPRs of the other. For blended marks (combining aspects of both brands), the permitted uses by each brand should be clarified to avoid confusion, including where the blended mark may appear and through what channels (e.g., websites, social media, domain names, hashtags and marketing campaigns). Brands should also set clear durations for use and termination rights, including whether remaining inventory may be retained or used outside of the collaboration period.

Franchising and alternative sales model agreements

In a franchise agreement, the franchisee is given access, via a limited license, to the franchisor’s IPRs and products and authorized to do business under the franchisor’s name. Consignment, meanwhile, is a unique arrangement allowing brands and individual owners to maintain ownership over products while granting retailers the right to display and sell those products for a set period. For brands, both types of agreements should clearly define the term of the agreement, the percentage of revenue each party receives upon sale, distribution of liability for lost or damaged goods and the effects of non-sale. For franchise arrangements in particular, many of the same concerns animating manufacturing agreements will apply.

Advertising agreements can take many forms, including agreements with advertising agencies, photographers, artists and content providers and production companies. Like other United States contracts, advertising agreements are governed by state law and should be put into writing and executed.

Licenses are necessary for use in advertising of all content that the fashion company does not own, such as music, props, locations, and images. If such rights cannot be secured, brands can work to retouch third-party IPRs from the advertising campaigns before they are released. Brands and agencies should carefully set out who is responsible for clearing these rights. Even if the responsibility contractually falls to an outside agency, fashion brands still face potential reputational risk, so it is best for brands to conduct their own reviews to ensure necessary licenses, permissions and releases are in place.

Ownership of all advertising should be contractually specified, including whether photographers, artists and other content creators retain any rights in the content (e.g., for use in a professional portfolio). If more than one party has a right to use the underlying content, the parties should set specific parameters (e.g., restrictions on the timing and placement of use to avoid premature leaks).

Employing fashion models

Written agreements with talent appearing in advertising are necessary in light of state Right of Publicity laws, which require companies to seek permission to use an individual’s name, image, likeness, voice, or persona. The laws vary by state, with some — such as California — being much more expansive than others. The location in which the talent resides or is domiciled (or, in the case of deceased talent, died) will generally govern what state law applies, although a few states provide broader rights regardless of location.

Specific termination and warranty provisions protect fashion companies that rely on talent in advertising. Morality clauses protect a brand’s image in case the talent behaves in a way that may harm the company’s reputation by providing a termination right. Talent may protect themselves by requiring other provisions, such as “pay or play” terms that will ensure payment even in the event the company decides not to use advertising in which the talent was supposed to appear.

Talent agreements must also take into account labor laws, particularly when minors are involved. Some states, such as New York, require companies to obtain permits before engaging minors, as well as regular breaks, the presence of chaperones and/or tutors or the provision of trust accounts for earnings. Representations and warranties should be obtained from all talent regarding their age and appropriate documentation. When a company contracts with a minor, the parent or guardian should be the signatory.

Unions and collective bargaining agreements may also impact wages and working conditions. The Screen Actors Guild is an actors’ union that requires certain working conditions and wages for members. Even if not a signatory to a SAG contract, a brand may be subject to the requirements if, for instance, the production company is a signatory or a licensing agreement for music or content to be used in connection with the advertisement, requires the brand to assume its union obligations.

Brands should also be aware of any important new or emerging requirements in the jurisdictions in which they do business. For example, in New York the Fashion Workers Act became effective in June 2025. The Act imposes new obligations on modeling agencies and their contracts with models, including: deal-memo requirements, tighter regulation of agency-imposed fees (capped at 20%), expanded protections against harassment and discrimination, and new disclosures regarding AI usage of model likenesses. Although this is a state law, its implications may ripple to other jurisdictions, particularly given the prevalence of New York as a major fashion capital.

Social media, influencers and brand ambassadors/celebrities

In a world where social media is increasingly important for advertising, fashion companies must pay close attention to their contractual arrangements with anyone speaking on their behalf. To avoid legal backlash (described in Question 3, below), contracts must require all influencers, brand ambassadors and other endorsers to clearly and unambiguously disclose the relationship to their followers. Good practice includes setting out when and where disclosures must be used and providing the exact language of disclosures (e.g., specific hashtags or use of sponsorship labels). Brands should also include representations and warranties mandating that all endorsements and testimonials reflect honest views and experiences.

Other important contract terms to consider are advance approval rights for content, brand take down rights and how the endorsers will be compensated (e.g., fixed fee per month, per post, per number of followers).

Brands must also pay attention to how they themselves may use posts created by influencers and ambassadors, for instance through boosting, whitelisting or putting paid media behind the posts. Organic social media posts are meant to be just that — organic. When they are boosted, whitelisted or transformed to paid media, the influencers may require approval rights to ensure the character of the posts (and credibility of the authors) are not impacted. Some influencers may demand clauses prohibiting this conduct all together.

Advertising standards, relevant authorities and advertising practice

See Question 3 below for a full discussion of the regulation of advertising and marketing in the United States.

The Federal Trade Commission (FTC)

The FTC is a federal agency with broad authority to regulate marketing and product labeling that is unfair, deceptive or fraudulent, including unsubstantiated advertising claims about the safety of a product.

In recent years, the FTC has increasingly focused on online advertising, including regulating undisclosed sponsorships, often occurring in “native advertising” — advertising that does not look like advertising. These ads are considered deceptive if endorsement relationships are not properly disclosed. FTC guidelines make clear:

• The company and endorser must disclose that they have a material relationship.
• Disclosures must be clearly presented and not be buried.
• Endorsements must be truthful and not misleading.
• Endorsers must be bona fide users of the product or service at the time of endorsement.

Congress also recently passed the INFORM Consumers Act, which requires online marketplaces with “high-volume third-party sellers” to disclose certain information about those sellers to prevent the sale of fraudulent, counterfeit or unsafe goods. The law gives the FTC and the states authority to enforce and impose a monetary penalty on violators.

Failure to comply with FTC rules may lead to enforcement actions, which include injunctions, fines, and other penalties. Lord & Taylor was the first fashion company targeted by the FTC for deceptive advertising involving influencers. The FTC alleged that the retailer provided influencers with a free dress and paid them to post pictures of themselves on social media wearing it, without requiring them to disclose the sponsorship arrangement. The parties ultimately settled, with the retailer agreeing to a consent decree prohibiting it from failing to disclose sponsored content in future promotional campaigns and monitoring of future marketing.

State laws

States have individual consumer protection statutes that authorize enforcement by state Attorneys General and provide private rights of action to injured consumers and, in many cases, competitors for false advertising. The standard for bringing claims varies by state: some require direct consumer interests to be implicated, while others have a “public interest” requirement, meaning a pattern of conduct or other factors that suggest a broader societal interest in the practice. These claims are often brought in the context of class-action litigation, on behalf of large numbers of plaintiffs, which can both be expensive to defend against and lead to massive amounts of damages and negative publicity.

State laws also govern online privacy. The California Privacy Rights Act, for example, places restrictions on the ability of businesses to “share” personal information of California residents. This may impair companies’ ability to engage in cross-context behavioral advertising.

As generative AI becomes integral to fashion design and marketing, new legal questions emerge, particularly questions related to advertising. States are beginning to take notice, particularly regarding advertisements using AI generated likenesses of individuals. Many are now passing laws and regulations which require written consent and/or disclosure for digital replication or synthetic likenesses.

The Lanham Act

Advertising is also regulated at the federal level through the Lanham Act, which allows competitors to bring actions against each other for false or misleading advertisements. A successful plaintiff can obtain an injunction mandating the competitor to remove the false advertising, as well as damages.

The National Advertising Division (NAD)

The NAD, a self-regulatory bureau that resolves complaints involving the truth or accuracy of national advertising, is another forum for advertising disputes. A quicker and less expensive option than federal court, it considers monitoring actions brought by the NAD itself, as well as challenges by competitors. Once a challenge is initiated, it is the advertiser’s burden to substantiate the accuracy of its claims. Unlike federal litigation, there is no discovery and, under the NAD’s new SWIFT process, certain disputes can be decided within 20 business days.

Compliance with NAD decisions is voluntary, and injunctive relief and damages are unavailable. Should an advertiser refuse to comply with the NAD’s recommendations, the matter may be referred to the FTC for further proceedings. A competitor may also then choose to bring a court proceeding, and many class-action lawsuits have also spawned from unfavorable NAD decisions.

Physical store layouts are protectable through trademark, trade dress, design patents, or a combination. The layout of Apple Inc.’s retail store, for example, is protected by trade dress.

Online store layouts or online store elements are also protectable through design patents for graphical user interfaces (GUIs). GUIs are the visual aspects of an online store, such as icons, pull-down menus, pointers, buttons, windows, and transitional animations.