When Does a Product Name Become a Trademark?

From Hermès’ “Birkin” and “Kelly” bags to Louis Vuitton’s “Speedy” and the names attached to individual beauty products, brands routinely use names to distinguish products, styles, shades, cuts, washes, and other offerings within a larger collection. Those names can appear on product labels and hangtags, in e-commerce listings and advertising campaigns, and across social media.

Some product names become valuable brand assets in their own right. A successful name may become so closely associated with a company that consumers understand it as more than the name of a particular product. When consumers encounter “Birkin” in connection with handbags, for example, they are likely to think of Hermès. But assigning a name to a product does not automatically make that name a trademark. Whether it functions as one depends in large part on whether consumers perceive it as identifying the source of the product. That question regularly arises in fashion and beauty, where companies cycle through large numbers of product, style, and shade names, sometimes using words or names that other companies are already using.

Product Name or Trademark?

Trademark law is concerned with source identification. A company may call a garment, handbag, beauty product, or other offering by a particular name without consumers necessarily understanding that name as a trademark. The distinction has been at the crux of litigation in Germany involving fashion companies’ use of model and style names.

Under German and European trademark law, the use of a sign that is identical or similar to another party’s trademark does not automatically amount to infringement. Courts consider whether the allegedly infringing use is occurring in a trademark sense, including whether consumers understand the sign as indicating the commercial origin of the goods. The analysis can become more complicated when the designation appears alongside a prominent house brand. German courts have considered whether consumers encountering a name attached to a garment perceive it as a secondary trademark or merely as a model designation used to distinguish one product from others sold by the same company.

The German Federal Court of Justice has held that the answer cannot be determined simply from the fact that a distinctive or non-descriptive term is being used as a model name. Whether the designation functions as a trademark depends on the context in which consumers encounter it. More recent German decisions have continued to apply that approach. A model designation can also function as a secondary trademark when consumers understand it as identifying a particular commercial source.

How the Name Is Used

Presentation can be critical. German courts have considered where the name appears, how prominently it is displayed, its relationship to the company’s primary brand, and whether consumers are accustomed to encountering similar designations as model names in the relevant market. A designation printed prominently on a product or highlighted in advertising may be more likely to be perceived as a trademark than one that appears within a product description alongside information such as size, color, price, and other specifications.

The presence of a prominent house mark can also affect the analysis. A Frankfurt court, for example, reiterated in a 2024 decision that consumers in the fashion market often look primarily to the manufacturer’s name as an indication of origin, particularly when that name is prominently displayed. The addition of a model name does not necessarily mean consumers perceive that name as a separate trademark.

At the same time, companies can use more than one trademark on a product. A model name may function as a secondary mark alongside the house brand if consumers have come to understand it that way. There is no categorical rule for style names. Their treatment depends on how they are used and how consumers perceive them.

Fashion, Beauty, and Descriptive Names

Beauty presents another version of the issue. Companies routinely use evocative words and phrases to name individual products and shades, including terms that describe or suggest a color, appearance, or effect. In Hard Candy, LLC v. Anastasia Beverly Hills, Inc., Hard Candy challenged Anastasia Beverly Hills’ use of “Hard Candy” as the name of an eyeshadow shade. The Eleventh Circuit held that Anastasia had made descriptive fair use of the term rather than using it as a trademark.

Anastasia presented evidence that cosmetics companies commonly use non-literal names for shades, including “Starburst,” “Mimosa,” and “Crushed Pearl.” In context, the court found that “Hard Candy” described a characteristic of the eyeshadow rather than identifying Hard Candy as its source.

The case shows why the words themselves are only part of the analysis. How a term is used, what it communicates about the product, and how consumers are likely to encounter it can affect whether trademark law applies.

Product names that allude to a product’s appearance, function, or promised effect can raise similar questions. Third-party use can matter, too. If consumers regularly encounter the same or similar terms used by multiple companies as product or style names, it may be harder for one company to establish that consumers associate the term exclusively with a single source.

What Brands Should Do

For brands, the first step is clearance. Before adopting a product or style name, companies should determine whether third parties are already using the same or similar designation for related goods. The inquiry should extend beyond trademark registrations. Trademark rights can arise through use, depending on the jurisdiction, and existing marketplace uses can create problems even when no registration appears in a trademark database.

For companies introducing hundreds or thousands of new styles, extensive worldwide clearance and trademark registrations for every name may not be practical. Instead, companies can prioritize names attached to bestsellers, permanent collections, and products they expect to build into longer-term franchises. If a product name begins to develop consumer recognition of its own, the company can consider whether trademark protection makes sense.

How the name is used matters here, as well. Consistent and prominent use across products, packaging, advertising, e-commerce, and other channels can support an argument that consumers perceive a name as identifying source rather than merely identifying a model. Companies looking to reduce infringement risk can approach model names differently. Deemphasizing a model designation relative to the house brand and presenting it alongside ordinary product information may weigh against consumers perceiving the designation as a separate trademark.

THE BOTTOM LINE: A product name can start as a way to distinguish one item from another and develop into a brand asset of its own. But popularity does not necessarily give a company exclusive trademark rights in the name. The central question remains how consumers understand it: Does the name identify the product, or does it also identify who made it?