http://ipkitten.blogspot.com/2023/04/is-your-trade-mark-really-green.html
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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