Top 10 Recommendations for Protecting Brands in the Fashion Industry

Introduction

Fashion brands face a protection problem that most industries do not. U.S. law gives clothing designs only limited protection: copyright does not cover the overall shape or cut of a garment, and design patents and trade dress each come with real hurdles.

At the same time, counterfeiting and copying are accelerating:

• Customs seizures. In fiscal year 2025, U.S. Customs and Border Protection (CBP) seized nearly 79 million counterfeit items worth over $7.3 billion at manufacturer’s suggested retail prices and clothing was among the top categories.
• Growth. From FY 2021 to FY 2025, the number of goods CBP seized for IP violations more than doubled, and their retail value rose more than 122%.
• Source countries. Nearly 90% of CBP’s IP seizures in FY 2025 came from China and Hong Kong.

Miami sits at the center of this fight. Swimwear, resort wear, streetwear, and luxury resale all thrive here. The Southern District of Florida has become one of the busiest trademark courts in the country, driven largely by “Schedule A” mass counterfeiting suits.

This article maps the legal tools available to fashion brands and reviews the court decisions that define their limits. It closes with ten practical recommendations for building and defending a fashion brand.

The Fashion IP Toolkit

No single right protects a fashion product, so the strongest brands layer several. Each tool protects a different part of the product and has its own timing and limits.

Tool	What it protects in fashion	Key requirements and limits	Duration
Federal trademark registration (Lanham Act)	Brand names, logos, monograms, hangtags, slogans; core classes 25 (clothing and footwear), 18 (bags and leather goods), 14 (jewelry and watches), 3 (cosmetics and fragrance), and 35 (retail services)	Must be distinctive and used in commerce. Registration gives nationwide priority, presumptions of validity, CBP recordation, and statutory damages against counterfeiters	Indefinite, with maintenance filings at years 5–6 and renewals every 10 years
Trade dress	Distinctive product shapes, color placement (such as a red sole), stitching, hardware, and packaging	Product design must prove acquired secondary meaning (Wal-Mart v. Samara). The plaintiff must prove the features are non-functional. Expensive to prove	Indefinite while distinctive and in use
Copyright	Original fabric prints, graphics, embroidery patterns, jewelry designs, and artistic features that can be separated from the garment	Does not protect a garment’s cut or shape (Star Athletica). Registering before infringement, or within three months of publication, preserves statutory damages and attorney’s fees (17 U.S.C. § 412)	Life of the author plus 70 years; 95 years from publication for works made for hire
Design patent	The ornamental appearance of shoes, handbags, eyewear, hardware, and jewelry	Must be new and non-obvious. File within one year of the first public disclosure. LKQ v. GM (2024) makes obviousness challenges easier	15 years from grant
CBP recordation	Lets customs block counterfeit and infringing imports	Available for federally registered trademarks and copyrights; most effective with product identification guides and officer training	Tied to the underlying registration
Florida law	State registration (Fla. Stat. ch. 495), state dilution (§ 495.151), FDUTPA, criminal counterfeiting (Fla. Stat. § 831.03), and the statutory right of publicity for names and likenesses of models and influencers (§ 540.08)	Supplements federal claims; useful for local enforcement and publicity disputes	Varies by statute
Foreign rights	EU, UK, and Asian trademarks; EU registered and unregistered designs	Rights are territorial; China and other manufacturing hubs follow first-to-file rules	Varies by jurisdiction

The practical lesson: a trademark protects the name, a design patent or copyright protects the look, and trade dress protects an iconic look only after years of exclusive use and promotion.

How Federal and Florida Trademark Registrations Protect Florida Fashion Companies

A Florida fashion company should hold both registrations. The federal registration is the main enforcement tool; the Florida registration is an inexpensive, fast supplement that opens state-law remedies.

What a federal registration does

• Nationwide priority from the filing date. Filing an application, including an intent-to-use application before the collection launches, gives nationwide constructive-use priority once the mark registers (15 U.S.C. § 1057(c)). A later local user cannot expand into your markets.
• Legal presumptions. The registration is prima facie evidence of validity, ownership, and the exclusive right to use the mark for the listed goods (§ 1057(b)). After five years of continuous use it can become incontestable, which sharply limits challenges (§§ 1065, 1115(b)).
• Constructive notice and the ® symbol. Registration is constructive notice of your claim (§ 1072). Using ® preserves the right to profits and damages (§ 1111).
• Counterfeiting remedies. For counterfeits of a registered mark, courts may order ex parte seizures (§ 1116(d)) and treble damages (§ 1117(b)). Brands may also elect statutory damages of $1,000 to $200,000 per counterfeit mark per type of goods, or up to $2,000,000 if the counterfeiting was willful (§ 1117(c)). Statutory damages are what make Schedule A suits against anonymous online sellers economical.
• Customs protection. Only federal registrations can be recorded with CBP to block counterfeit and confusingly similar imports (§ 1124).
• Marketplace access. Amazon Brand Registry and other platform programs rely on a pending or registered government trademark.
• Dilution defense. A federal registration is a complete bar to any state-law dilution claim against your own mark (§ 1125(c)(6)).
• Foreign expansion. A U.S. application can serve as the basis for a Madrid Protocol international application and supports six-month Paris Convention priority abroad.

Cost and timing. Since January 18, 2025, the USPTO base application fee is $350 per class. Surcharges apply for free-form descriptions of goods ($200 per class) and incomplete applications ($100 per class). Choosing goods descriptions from the USPTO ID Manual avoids the surcharges. Registration typically takes a year or more.

What a Florida registration adds

• Speed and cost. A Florida registration under chapter 495 costs $87.50 per class. Applications are typically processed within two to five business days. Registrations last five years and are renewable for $87.50 per class.
• State remedies. Section 495.141 lets the owner of a Florida-registered mark sue to enjoin counterfeits and imitations. Remedies include the infringer’s profits (the plaintiff proves only sales), damages up to three times actual damages, destruction of counterfeits, and reasonable attorney’s fees to the prevailing party.
• Florida dilution damages. Under § 495.151(2), a mark famous in Florida gets injunctive relief only, unless the owner proves willful dilution and holds a Florida registration. The state registration is what unlocks money for a brand famous mainly in Florida.
• A bridge before federal registration. A Florida registration can be in hand within days while a federal application is pending. That gives a locally launched swimwear or resort-wear line a public record of its claim and state-law remedies during the gap.
• Local deterrence and evidence. The registration appears in Sunbiz searches that other Florida businesses run when choosing names. It also documents your Florida use date for later priority disputes.

A Florida registration is not a substitute for federal registration. It covers only Florida, it gives no CBP or nationwide priority benefits, and a defendant with its own federal registration is immune from Florida dilution claims.

Side-by-side comparison

Feature	Federal (USPTO) registration	Florida (chapter 495) registration
Geographic reach	Nationwide; basis for foreign filings	Florida only
Filing basis	Use in commerce or intent to use	Use of the mark in Florida
Government fee	$350 per class (base), plus possible surcharges	$87.50 per class
Typical timeline	About 12 months or more	Two to five business days
Term	10 years, renewable; maintenance filing between years 5 and 6	5 years, renewable
Presumptions and priority	Validity, ownership, and exclusive right; nationwide priority from filing; incontestability after 5 years	Public record of the claim; supports state claims
Counterfeiting remedies	Ex parte seizure; treble damages; statutory damages up to $2,000,000 per mark per type of goods for willful counterfeiting	Profits, damages up to treble, destruction of goods, attorney’s fees (§ 495.141)
Customs (CBP) recordation	Yes	No
Dilution	Federal dilution for nationally famous marks; bars state dilution claims against the registrant	Required for monetary relief on willful Florida dilution (§ 495.151(2))
Marketplace programs	Accepted by Amazon Brand Registry and others	Generally not accepted

Design Patents: Ancillary Protection for the Look of the Product

Trademarks protect the brand name; design patents protect what the product looks like. For a fashion company, a design patent is often the only tool that can stop an unbranded knockoff of a new shoe, handbag, buckle, or swimsuit hardware before trade dress rights exist.

What a design patent covers

A design patent protects a new, original, and ornamental design for an article of manufacture (35 U.S.C. § 171). In fashion, strong candidates include:

• footwear uppers, soles, and tread patterns;
• handbag shapes, clasps, and hardware;
• eyewear frames;
• jewelry and watch designs;
• belt buckles, zipper pulls, and logo-shaped hardware;
• distinctive swimwear cutouts or structural elements; and
• packaging and display designs.

The patent lasts 15 years from grant, with no maintenance fees (§ 173).

How it supplements trademark and trade dress

1. Immediate protection while trade dress matures. Product design trade dress requires secondary meaning, which can take years to build. A design patent protects the look from issuance, and the brand can build secondary-meaning evidence during the patent term to support trade dress after the patent expires.
2. No need to prove confusion or brand recognition. Infringement turns on whether an ordinary observer, familiar with the prior art, would consider the accused design substantially the same as the patented design. A knockoff that carries its own label or a “dupe” disclaimer can still infringe.
3. Reaches unbranded copies. Trademark claims need a mark or protectable trade dress. Design patents reach copies that remove every logo, which is the classic fast-fashion and marketplace “inspired by” product.
4. A strong monetary remedy. An infringer is liable for its total profit on the article of manufacture . The “article” may be the end product or a component, such as a sole or a clasp . Reasonable-royalty damages are also available.
5. Marketplace and border enforcement. Major marketplaces accept design patent infringement reports, and Schedule A complaints regularly assert design patents against unbranded copies. CBP does not record design patents, but the International Trade Commission can issue exclusion orders under Section 337, including general exclusion orders against knockoffs from many sources.
6. Licensing and deal value. Issued design patents are licensable, financeable assets that support collaborations and investor diligence.

Filing strategy for fashion companies

• File before the first public disclosure, or within one year of it. U.S. law gives a one-year grace period for the designer’s own disclosure (§ 102(b)(1)). Runway shows, look books, trade fairs, influencer seeding, and social media teasers all start the clock, and many foreign design systems are less forgiving. The safest course is to file before the reveal.
• Claim strategically with solid and broken lines. Solid lines claim the protected features; broken lines disclaim the rest. Claiming a signature element alone (a buckle, a heel, a strap configuration) can catch copyists who change the rest of the product.
• Cover variations. Include multiple embodiments where permitted, and consider continuation or divisional applications for successful designs. Budget for the continuation surcharges added in January 2025.
• Plan for longer timelines and higher costs. USPTO design patent filing and issue fees rose about 27% and 76% respectively in January 2025. The expedited “rocket docket” for design applications was suspended on April 17, 2025, and later formally discontinued. Pair design filings with copyright and trademark protection for the launch window.
• Expect tougher validity challenges. After LKQ Corp. v. GM Global Technology Operations LLC (Fed. Cir. 2024) , obviousness is assessed under the flexible KSR/Graham framework. Reserve design patents for genuinely new silhouettes and features, and document the design process.
• File abroad within six months. Paris Convention priority lets you file foreign design applications within six months of the U.S. filing (35 U.S.C. § 172). The Hague Agreement allows a single international application covering multiple countries. Consider EU and UK registered designs for core markets.
• Mark the products. Physical or virtual patent marking (“Pat.” with the number, or a web address listing patents) preserves damages for infringement that occurs before the infringer receives notice (§ 287).

Putting the layers together

The strongest fashion portfolios layer four protections:

• a federal trademark (and Florida registration) for the brand;
• a design patent for the new look during its first years on the market;
• a copyright for prints and separable artwork; and
• trade dress for the icons that earn secondary meaning over time.

Each layer covers a gap the others leave open.

Key Decisions Shaping Fashion IP

These decisions define what fashion brands can and cannot protect, and how far parody, art, and online marketplaces can push back. They are listed newest first.

Case	Holding	Lesson for brand owners
adidas America, Inc. v. Thom Browne, Inc. (S.D.N.Y. jury verdict Jan. 2023; 2d Cir. affirmed May 2024; 2d Cir. rejected new-trial bid Apr. 29, 2026)	A jury found Thom Browne’s four-stripe and grosgrain designs did not infringe or dilute adidas’s three-stripe mark	Even famous marks have limits. Aggressive enforcement against a distinct design can fail at trial, and adidas also lost a parallel EU proceeding with a fee award
LKQ Corp. v. GM Global Technology Operations LLC (Fed. Cir. 2024) (en banc)	Overruled the Rosen-Durling test; design patent obviousness now follows the flexible KSR/Graham approach	Design patents are harder to obtain and easier to challenge. File for genuinely new designs, and build a layered portfolio rather than relying on one patent
Vans, Inc. v. MSCHF Product Studio, Inc. (2d Cir. 2023)	First appellate decision to apply Jack Daniel’s: the “Wavy Baby” sneaker used Vans’s marks and trade dress as source identifiers, so ordinary confusion analysis applied and the preliminary injunction stood. The case settled in 2024, with MSCHF acknowledging Vans’s rights	“Art” and “parody” labels do not shield a product that trades on an iconic design. Move quickly for injunctive relief and escrow of sales proceeds
Jack Daniel’s Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023)	The Rogers First Amendment test does not apply when a defendant uses another’s mark as a designation of source for its own goods	Parody products that brand themselves with your trade dress now face a standard likelihood-of-confusion analysis
Hermès International v. Rothschild (S.D.N.Y. 2023)	A jury found the “MetaBirkins” NFTs infringed and diluted Hermès’s marks and awarded $133,000; the court permanently enjoined sales and ordered transfer of the domain name. The appeal was argued October 23, 2024. Reports through August 2026 indicate it remained pending	Trademark rights extend into digital goods. Register for virtual-goods classes and police NFT and metaverse uses
Star Athletica, L.L.C. v. Varsity Brands, Inc., 580 U.S. 405 (2017)	A design feature of a useful article is copyrightable if it can be perceived as a separate work of art and would qualify as a protectable artistic work on its own	Register prints, graphics, and surface designs. The cut and shape of a garment remain unprotected by copyright
Christian Louboutin S.A. v. Yves Saint Laurent America Holdings, Inc., 696 F.3d 206 (2d Cir. 2012)	Louboutin’s red sole is a valid mark when it contrasts with the shoe’s upper. YSL’s all-red monochrome shoe did not infringe	A single color can be a fashion trademark, but only as defined by secondary-meaning evidence. Draft registrations precisely
Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93 (2d Cir. 2010)	eBay was not contributorily liable without specific knowledge of particular infringing listings. General knowledge of counterfeiting was not enough	Marketplaces act on specific notices. Use takedown and brand-registry programs systematically and keep records
Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205 (2000)	Product design trade dress (here, children’s clothing) can never be inherently distinctive and requires proof of secondary meaning	Until secondary meaning exists, a new garment design needs design patents or copyright. Collect sales, advertising, and unsolicited-media evidence from launch

See also Pop v. LuliFama.com LLC, No. 24-11048 (11th Cir. Aug. 1, 2025), a Miami swimwear case in which FDUTPA claims over undisclosed paid influencer posts were dismissed for failure to plead fraud with particularity. Influencer marketing is now a litigation target for consumers as well as brands.

Top 10 Recommendations for Protecting Fashion Brands

1. Clear and register the brand before launch, in the right classes and countries. Run full clearance searches, then file intent-to-use applications for the house mark, logo, and key sub-brands. Cover classes 25, 18, 14, 3, and 35, plus class 9 and virtual-goods services if you plan digital products. File early in manufacturing countries, especially first-to-file China, and use the Madrid Protocol for core markets. A brand that is not registered where its goods are made can be registered by its own factory.
2. Build a layered design-protection plan for each collection. Decide at the design stage which pieces deserve design patents. File before, or within one year of, the first public showing, including runway shows, look books, and social media teasers. Register copyrights in original prints and graphics, and consider EU and UK design registrations for hero products. After LKQ, do not rely on a single design patent.
3. Turn signature elements into trade dress deliberately. Choose a few non-functional signature features, such as a color placement, hardware, stitching, or silhouette. Use them consistently, feature them in advertising (“look-for” campaigns), and document the resulting secondary meaning from day one. Wal-Mart and Louboutin show that the evidence is the asset.
4. Register copyrights promptly. To preserve statutory damages and attorney’s fees, register prints and graphics before infringement or within three months of publication (17 U.S.C. § 412). Group registration options can make seasonal filing practical.
5. Record your rights with CBP and train customs officers. Record federal trademark and copyright registrations through CBP’s e-Recordation program. Provide product identification guides showing authentic tags, labels, hardware, and packaging. Customs stops counterfeits before they reach marketplaces, at a fraction of litigation cost.
6. Run a continuous online enforcement program. Enroll in Amazon Brand Registry and other marketplace programs, monitor social commerce and “dupe” content, and send specific, documented takedown notices; Tiffany v. eBay shows that marketplaces act on specific knowledge. Track repeat sellers to build evidence for litigation.
7. Use Schedule A litigation in the Southern District of Florida strategically. Mass counterfeiting suits remain powerful; filings by five major fashion houses reached 74 in the first eight months of 2026 alone. Courts now scrutinize jurisdiction, joinder, service, asset freezes, and damages. Support each case with completed test purchases shipped to Florida, defendant-specific evidence, and a reasoned joinder theory.
8. Lock down ownership and quality in every contract. Use written IP assignments with designers, freelancers, photographers, and pattern-makers. Give manufacturers NDAs that prohibit overruns, require return or destruction of molds and labels, and allow audits. License agreements need real quality control, and collaborations should state who owns co-branded designs and marks.
9. Manage influencer and celebrity relationships carefully. Use written agreements that require FTC-compliant disclosure of paid endorsements, grant clear rights to names and likenesses (Florida Stat. § 540.08), and keep approval rights over content. Pop v. LuliFama shows that undisclosed influencer campaigns invite consumer class actions, even when the brand ultimately wins.
10. Enforce firmly, but pick your battles. Under Jack Daniel’s and Vans, parody and “art” defenses are weaker when a defendant brands its goods with your marks or trade dress, so act quickly for injunctions in those cases. adidas v. Thom Browne and Hermès v. Rothschild show both the cost and the value of litigating at the edges. Assess confusion evidence, the strength of the mark, and public reaction before suing, and use cease-and-desist letters, UDRP proceedings, and coexistence agreements where they fit.

Conclusion

Fashion brands win by planning protection into the design calendar, not by reacting after copies appear. Register the name early and everywhere the goods are made or sold. Protect each collection’s look with design patents, copyrights, and well-documented trade dress. Put contracts, customs, and online enforcement to work, and litigate decisively when a competitor or counterfeiter trades on your identity.

If you are launching a collection or facing counterfeits or copycats, contact our office via email at [email protected] or call 305-374-8303 to build a protection and enforcement plan tailored to your brand.