Industrial property and its interrelationship with sustainability is becoming increasingly important in a world where environmental and ethical issues dominate the global agenda. Companies are seeking to comply with environmental, social and governance (ESG) standards while facing stricter regulations on the transparency and truthfulness of their activities.
Evidence of this boom is the report by the EUIPO in September 2021 defining ‘green marks’ as applications that contain at least one ‘green’ term in their descriptions of goods and services. Green terms are expressions in the description of goods and services that are related to environmental protection and sustainable development.
In February 2023, the EUIPO presented a report (Green EU Trademarks - 2023 update) with an update on trends in Green EU Trademarks, in which Germany ranked first within the EU with the most green trademarks applied for at the EUIPO.
In relation to the categories of green trademarks, the report shows that the three areas with the most applications are: Energy conservation (25%), energy production (18%), transport (15%).
In this context, the phenomenon of greenwashing arises, which has generated debates on how to protect consumers and ensure the veracity of environmental claims made by brands.
What is greenwashing?
Greenwashing is a deceptive practice in which a company conveys an image of being environmentally friendly without actually meeting its claimed sustainability standards. This can range from exaggeration in advertising campaigns to manipulation of environmental information, leading to confusion among consumers seeking to make informed and ethical choices. Brands play a crucial role in this phenomenon, as consumers associate a company's reputation and promises with its products or services.
Greenwashing raises serious implications for industrial property, in particular trademark law, as companies making such false claims compromise trust in their most valuable intangible assets: their brands. Moreover, it could give rise to unfair competition claims for deceptive practices.
On the terms ECO, BIO, GREEN or GREEN in trademarks.
This increase in the number of applications for green trademarks in the EUIPO has a consequence in their examination, as the incorporation of terms such as ECO, BIO, GREEN or GREEN, etc., are often refused by the trademark offices for being descriptive or misleading.
In relation to the first case (descriptive trademarks), the EUIPO, both in its Guidelines and in its decisions, considers that the term ECO (with the meaning of ecological) denotes a positive or attractive quality or function of the goods and services. Therefore, trade marks consisting of this term, or if accompanied by any descriptive element, would not be admissible. This is the view of the General Court in the judgments of 24/04/2012, T-328/11, EcoPerfect, EU:T:2012:197, § 25, and 15/01/2013, T-625/11, EcoDoor, EU:T:2013:14, § 21. It also identifies the term GREEN as an indicator of environmental friendliness in the judgment of 27/02/2015, T-106/14, Greenworld, ECLI:EU:T:2015:123, § 24.
Therefore, in the event of wishing to include this type of term to represent an indication of a green mark, and not fall under this ground for refusal on absolute grounds, in this case, lack of distinctiveness, it would be advisable for this type of term to be accompanied by another or other elements that are sufficiently distinctive, whether verbal or graphic, or a combination of both.
With regard to the second most common ground for refusal in this type of trade mark, i.e. that the trade mark may mislead the public, we also mention in a few brief lines the controversial case of ‘BEYOND MEAT’ in which the company Beyond Meat, Inc. registered a trade mark in the EU with the graphic,
in classes 29, 30 and 32, before which an application for invalidity was filed by Interveb, in which it argued that the graphic of a cow with a cape on a green background was misleading in relation to goods in classes 29 and 30 for meat, milk and cheese substitutes and substitutes made from vegetable ingredients, as it would be perceived by consumers as a product made from animal meat or dairy products, an argument that was accepted by the EUIPO to invalidate the mark. However, this decision of May 2024 is not final and is subject to appeal.
This case was somewhat controversial as Beyond Meat is a company that produces meat substitute foods, while Interveb is the interprofessional organisation for beef in France, and opinions were exchanged between the companies in which Interveb was accused of acting in the meat lobby, while Interveb expressed its rejection of the use of codes and designations traditionally associated with meat to market these plant-based alternatives.
Thus, we see the fundamental role of trademark offices, such as the EUIPO and the SPTO, as they play a key role in the supervision of trademark applications that claim to be associated with sustainability values.
As a complement to the work carried out by the offices, we also cite the recent approval of the Green Claims Directive, which aims to regulate environmental claims, obliging companies to back up their claims with solid scientific evidence. This ultimately affects how companies present their products and how they use brands to convey sustainability values.
Conclusión
The balance between industrial property and sustainability represents a key challenge today. While trademarks play an essential role in communicating companies' environmental responsibility, the proliferation of greenwashing calls for stricter regulation and greater corporate responsibility. Joint work between the EUIPO, the SPTO and European legislative bodies is crucial to ensure that brands remain synonymous with trust, quality and sustainability in an increasingly demanding business environment. Companies that succeed in genuinely integrating ESG standards into their branding strategies will be better positioned for long-term success in a market geared towards transparency and sustainability.