Is your trade mark (really) green?

Environmental considerations are becoming increasingly important for brand owners filing trade mark applications for environmentally friendly or sustainable goods and services.

The Green EUTM Report

On 7 February 2023 the European Union Intellectual Property Office (EUIPO) published an update to the Green EUTM report. The study unveils some interesting data: 18,726 green EU trade marks (EUTMs) were filed at EUIPO in 2021, with green EUTMs increased to 12% of the total. The study also shows that non-European countries file a higher proportion (14.1%) of green EUTMs than EU Member States (10.6%).

All the above said, a trade mark must be capable of distinguishing the goods or services of one company from the goods or services of other companies.

The General Court recently confirmed the refusal to register the verbal sign “Sustainability through Quality” as a trade mark, saying that people would consider it to be a promotional phrase, because of its intrinsic meaning, rather than an indication of commercial origin (see IPKat here).

The proposal for a European Union Directive on green claims

Greenwashing is a marketing practice used by organisations to provide a misleading image of ecological responsibility (e.g. using the name of the brand or product or services to give the impression of “nature” or conveying unsubstantiated messages of environmental).

The Proposal for a Directive on empowering consumers for the green transition and annex, dated 30 March 2022, defines green claims as follows:

“Any message or representation, which is not mandatory under Union law or national law, including text, pictorial, graphic or symbolic representation, in any form, including labels, brand names, company names or product names, in the context of a commercial communication, which states or implies that a product or trader has a positive or no impact on the environment or is less damaging to the environment than other products or traders, respectively, or has improved their impact over time.”

On 22 March 2023, the European Commission (EU Commission) published the Proposal for a Directive of The European Parliament and of the Council on substantiation and communication of explicit environmental claims (Green Claims Directive) (the press release can be found here). The EU Commission “is proposing common criteria against greenwashing and misleading environmental claims” with the aim to guarantee to consumers more clarity and better-quality information to choose environment-friendly products and services. According to the proposal, companies will have to respect minimum norms when making green claims about their products or services. These claims will be independently verified and proven with scientific evidence. Companies will also have to identify the environmental impacts relevant to their product as well as any possible trade-offs to give a full and accurate picture.

The Impact Assessment Report accompanying the Directive Proposal highlighted that 53.3% of examined environmental claims in the EU are vague, misleading or unfounded and 40% are unsubstantiated.

The Green Claims Directive proposal will now be subject to negotiation within and adoption by the European Parliament and the Council pursuant to the ordinary legislative procedure.

Towards a green IP

Sustainability is nowadays an intangible asset with a transversal character. The advantages with regard to the consideration of the sustainability of innovative products and processes are not insignificant for companies, provided they are able to implement well-identified strategies of protection and valorisation, in order to face the challenges of global sustainability within renewed business models.

Future development is, in fact, surely destined to be shaped by an approach capable of guiding and transforming companies so that they base all their activities on the concept of sustainability. It seems that, within a business model focused on sustainability, the management of IP assets can play an important role in order to flank the purely commercial impact with a social and environmental one.

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