For this month’s blog post, we have chosen to focus on the filing of “green” trade marks, a trend which has been steadily growing in the past years.
Trade mark filings are good indicators of market trends and help better understand consumers’ current interests and preferences. As climate change and other environmental issues are increasingly prominent in the public discourse and raise more and more concerns across members of society (particularly younger generations), companies have to adapt. This is done via the adoption of specific corporate policies, via the offering of more sustainable products or services, and also by changing the image that they project on the market. To this end, trade marks can allow a company to appear “greener”, more environmentally friendly and hence more in line with the population’s concerns. This, in turn, can help companies retain or attract customers who want their consumer choices to reflect their values.
Green claims and “greenwashing”
Of course, not all companies really aim to change their ways of doing business – so it is tempting for some to simply work on their communication strategy to appear environmentally conscious – even if concrete actions do not follow. This practice, called “greenwashing”, is increasingly being called out by NGOs and civil society activists.
At European level, the European Commission’s Green Deal strategy highlights the importance of “reliable, comparable and verifiable information” to enable buyers to “make more sustainable decisions” and to “reduce the risk of greenwashing”.
This is reflected in the proposal for a Directive as regards empowering consumers for the green transition (published in March 2022), in which the European Commission specifically identifies greenwashing – misleading, unclear, or poorly-substantiated environmental claims – as one in several unfair commercial practices which prevent consumers from making sustainable consumption choices. The proposal defines “environmental claims” as “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”.
To complement this, the Commission also launched the Green Claims initiative, aimed at ensuring that environmental labels and claims are credible and trustworthy and thus can allow consumers to make better informed purchasing decisions.
Highlighting that 53% of green claims give vague, misleading or unfounded information, and that 40% of claims have no supporting evidence, the EU proposed in March 2023 a new Directive on substantiation and communication of explicit environmental claims (Green Claims Directive). The proposal requires companies to substantiate the claims that they make about environmental aspects or performance of their products and organisations using robust, science based and verifiable methods.
Where do trade marks fit into all this?
As mentioned above, the current EU draft legislation on greenwashing includes labels, brand names, company names and product names in its definition of the “environmental claims” that it wishes to regulate. Therefore, a company’s greenwashing practices applied to its branding strategy – e.g. registering trade marks projecting a clean, sustainable image – could end up falling under such provisions and being strongly scrutinised by regulatory authorities, or even prohibited under consumer protection laws.
At the same time, it is important to recall that the current trade mark system already provides some tools that can discourage greenwashing when it comes to trade mark filings.
While green European Union trade mark filings (i.e. related to environmental protection and sustainable development) have been increasing a lot (both in absolute and relative terms, over the total of EUTM filings) since 1996, applicants have to keep in mind that the signs they apply for cannot be misleading or deceptive to the public. A trade mark making false green claims could indeed be denied registration on absolute grounds (article 7(1) g. EUTMR prohibits the registration of deceptive trade marks) or be revoked after registration, if the use made by its proprietor makes it liable to mislead the public (article 58(1) c. EUTMR).
Another hurdle potentially faced by applicants is that, in the event that the green claims are honest and well-founded, the trade mark could then be found descriptive (e.g. if it is designating the quality or nature of the goods – that would be the case of trade mark applications which would describe a product as being organic or eco-friendly) and thus could be refused registration (article 7(1) c. EUTMR).
Green trade mark applications can also be rejected on the grounds of article 7(1) b. EUTMR, which prohibits the registration of non-distinctive signs. This is a common issue for slogans, which are difficult to register as trade marks and will usually be denied registration if they exclusively consist of a basic promotional message (hence, consist of a laudatory message promoting the goods and services sold rather than act as an indication of origin of the goods on the market). In a recent case (T-253/22), the General Court confirmed this by refusing registration of the word mark “Sustainability through Quality”. In line with European case law on the registrability of slogans, the Court found that the phrase “Sustainability through Quality” was not formally unusual and did not contain any surprising, fanciful or unexpected element that could trigger a cognitive process or otherwise give it distinctive character. The sign was therefore found to be a simple promotional message shedding positive light on the goods and services covered by the application, and not an indication of commercial origin.
EU Certification marks
As described above, it may sometimes be difficult to register green marks in Europe as they may fall under greenwashing prohibitions, be found deceptive, or even be simply descriptive or non-distinctive. However, the “new” EU certification marks (introduced in the EU in 2017 by article 83 EUTMR) can be useful tools when it comes to reflecting sustainable choices in branding.
EU certification marks are signs which seek to certify certain characteristics of the goods or services offered – they serve to indicate that the goods and services comply with specific norms, for example with specific quality standards. The owner of an EU certification mark can only use that mark to certify the goods and services of other undertakings: indeed, one of the particularities of the EU certification mark is that its owners have a duty of neutrality, meaning that they cannot certify their own goods or services or use the mark themselves. When filing for an EU certification mark, applicants have to include the regulations governing the use of that mark. This document contains inter alia information as to the characteristics of the goods or services to be certified, the conditions governing the use of the mark, and the testing and supervision measures to be applied by the EU certification mark owner.
For example, the figurative EU certification mark CAAE certifies that the agricultural goods it is attached to have been produced following specific norms on organic farming. It is owned by Asociación Valor Ecológico CAAE, a certification body for organic agricultural products.
It may therefore be interesting for companies implementing sustainable production processes or otherwise active in “green” sectors to study whether their goods and services could be certified by an existing certification body, thus allowing them to use renowned EU certification marks in trade.
- Publication date
- 7 July 2023
- European Innovation Council and SMEs Executive Agency