As demand for sustainable products has grown, so has the number of brands making green claims, but can anyone protect 'green trademarks'? Niké Mion provides some practical guidance for applicants in the EU.
As interest in the environment and sustainability has grown, there has been a corresponding increase in the use of terms on packaging and labels such as Green, Eco, Sustainable, Pure, 100% Natural, Organic, Conscious, Environmentally Friendly, Zero, and (Climate) Neutral. The use of such designations falls under 'sustainability and/or environmental claims' (hereinafter referred to as 'green claims') because the use of these indications gives the impression that the products for which they are used contain, for example, sustainable ingredients and/or have been produced sustainably.
Unsurprisingly, the increasing demand for sustainable products has also led to an increase in applications for 'green trademarks'. The Green EU Trademarks report released in February 2023 by the European IP Office (EUIPO) reveals an enormous increase in the number of EU trademarks (EUTMs) featuring a green claim between 1996 and 2021 and especially in the 2019-2021 period.
This increase is not only caused by the rise in requests for products and services that are directly related to sustainability, such as green energy and recycling, but also for products and services that are not directly related to this demand. However, it remains to be seen whether this increase in 'green' brands also contributes to a better environment.
From green deals to green trademarks
The European Green Deal aims to make Europe climate-neutral by 2050. One of the components of the Green Deal is the ban on greenwashing and other misleading product information. To this end, the European Parliament adopted a new directive in January 2024, which stipulates that:
- Generic environmental claims (such as organic, eco or eco-friendly) on products without evidence will be banned;
- Sustainability labels should only be allowed if they are based on approved certification schemes or established by a public authority.
In other words, consumers should not be misled and trademark owners should be aware that the use of green trademarks must be substantiated by information from verifiable sources.
Trademark registration requirements in brief
Under EU trademark law, a sign is eligible for trademark protection if it has sufficient distinctive character, is not descriptive of the products for which it is to be used (i.e., be generic/use a common term) and is available for the specified goods and services. As importantly, the sign must not be misleading. These are the so-called absolute grounds for refusal on which trademark applications are assessed.
- Distinctiveness
Many of the green claims mentioned earlier are not eligible for trademark registrations in themselves because they are purely descriptive and, therefore, insufficiently distinctive. European case law confirms, for example, that the term 'eco' is an abbreviation of ecological and 'green' is a generic designation of an environmentally friendly product.
Nonetheless, it is possible to obtain registration by adding a distinctive (figurative) element to a non-distinctive trademark. In that case, protection is obtained for the trademark as a whole and action can (only) be taken against the use of a sign that is similar to the graphical representation of the trademark as registered.
- Deceptive/misleading
A trademark application may also be refused if it is likely to mislead the public as to the nature, quality or geographical origin of the goods or services. For example, deception may be found to occur if a trademark creates a false impression about, for example, the composition or origin of a product. If that is the case, a trademark will be refused (in part or as a whole).
But, to establish if this is the case, the trademark will be considered in combination with the products and/or services for which it is applied. It will not consider possible future uses or circumstances. Except in obvious cases where green claims are unlikely, such as ABC Green PFAS or XYZ Biological Uranium, it remains to be seen whether green trademarks will be refused since trademark offices cannot (yet) assess whether a trademark owner can sufficiently substantiate their green claims.
Green trademarks and certification marks
Certification (or quality) trademarks are marks that indicate that certain products meet objectively measurable criteria. In the eyes of the consumer, a quality mark offers the guarantee that a more or less independent body has inspected the product or service in question on objectively measurable aspects. Dozens of certification marks in the context of environmental protection and sustainability already exist (such as the Green Brand and Fairtrade logos) and use of such green trademarks is permitted if the conditions imposed on such use are met.
Should you register green trademarks?
If you intend to use a brand in combination with a green claim, seek advice at an early stage about the availability of your chosen mark and the ability to protect it. Figurative trademarks may be easier to register. However, it is important to avoid the risk of refusal by avoiding potentially misleading terms.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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