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leden 18, 2022 O úřadu EUIPO

Green with… IP


 

By Eleonora Rosati

Over the past several years, attention towards and concerns relating to the respect and protection of the environment and the sustainability of production and consumption processes have increased. Related policy initiatives to safeguard the environment and tackle climate change have also intensified globally. Among other things, in 2019, the European Commission established action on climate change as a priority, committing to deliver a European Green Deal with the aim to make Europe the first climate-neutral continent by 2050.

Consumers and brands
Consumer surveys also confirm the above. For example, insofar as fashion is concerned, the vast majority of consumers believes that limiting impacts on climate change has become even more important today, and so has reducing pollution. A survey conducted by the European Commission confirmed that, in 2020, EU-based consumers made ‘greener' choices as they were willing to pay more for a product that is more durable.

In turn, companies and brand owners have strengthened their efforts to ensure that their products are sustainable and respectful of the environment, and are perceived as such.

The European Union Intellectual Property Office (EUIPO) recently released its Green EU Trade Marks Report. Prepared by the European Observatory on Infringements of Intellectual Property rights, the report examines the frequency with which goods and services (‘G&S’) specifications of EU trade marks (‘EUTMs’) reflect issues related to environmental protection and sustainability.

The G&S were analysed for the presence of terms (in the end there were approximately 900 of them) that can be said to be related to the protection of the environment and sustainability, such as ‘photovoltaic’, ‘solar heating’, ‘wind energy’, ‘recycling’.

The main finding of the study is that growing interest in sustainability is indeed reflected in the EUTMs filed at the EUIPO since the Office began operations in 1996, both in absolute figures and as a proportion of all EUTM filings. Of the approximately 46,700 EUTM applications received by EUIPO in 1996, 1,588 were green trade marks. Since then, the increase in green trade marks has been continuous, except for 2001 and between 2011 and 2014. In 2020, the number of green EUTMs filed approached 16,000. Overall, the top green EUTM filing countries in the EU are Germany, Spain, France, Italy, and the Netherlands.

Tackling ‘greenwashing’
Of course, ‘green’ and ‘sustainable’ claims are not always truthful. Attempts to make consumers believe that an undertaking is doing more to protect the environment than it really is are called ‘greenwashing’. Some national authorities have provided guidance to help businesses understand and comply with their existing obligations under consumer protection law when making environmental claims, while others have been fining companies over inappropriate ‘green’ claims.

Recently, the European Commission revealed that half of green claims lack evidence. In over 40% of such instances, it is believed that the claims made may be regarded as false or deceptive and may therefore be a potential case of unfair commercial practice under EU law.

Insofar as greenwashing and trade mark protection are concerned, the EU trade mark legislation prohibits the registration of signs which are of such a nature as to deceive the public; for instance, as to the nature and quality of the G&S. Closely connected to this, it is also important to recall that the misleading use of a trade mark can result in the revocation of a trade mark registration. Academic research is also contributing to shedding light on the use of trade marks to convey information related to alleged environmentally and socially sound business behaviours.

In parallel to all this, existing legislative instruments and related guidance can also help brand owners communicate their commercial messages correctly and thus avoid the risk of greenwashing. Trade marks are important assets in this sense: several brand owners have been using them to communicate ‘green’ messages relating to their G&S. Among other things, it has become recently possible to obtain EU certification marks. Because these marks relate to the guarantee of specific characteristics of certain goods and services, they serve to indicate that the goods and services covered by such marks comply with given standards.

All this, of course, must take place in accordance with the limitations inherent to the EU trade mark system, including those relating to deceptive and misleading signs. This said, green trade marks and green IP in general – as expressions of innovative solutions that are better than past ones at protecting the environment – can also stimulate investments in this sense and, in doing so, be an ally in the fight against pollution, climate change and damage to the Earth’s diverse ecosystems.

Towards a greener future
The respect of the environment and the growing sensitivity towards sustainability have accelerated, also as a result of the COVID-19 pandemic and related response measures. In this sense, the OECD estimates a projected long-term – potentially permanent – downward impact on the levels of environmental pressures like energy-related emissions.

Going forward, it is expected that further policy and legislative initiatives will be undertaken, including in the intellectual property field. An important example is the possibility to protect as geographical indications (‘GIs’) at the EU level, not just agricultural products – such as Prosciutto di Parma and Bordeaux – but also non-agricultural ones, such as Vetro di Murano and Emaux de Limoges. GIs are signs used to indicate that a product has a specific geographical origin and possesses a certain reputation or qualities due to that place of origin. It is believed that GIs contribute to the social and environmental sustainability of the economy and serve to support tourism and knowledge of the rich and diverse heritage of countries and regions.

Eleonora Rosati is an Italian-qualified lawyer with experience in copyright, trade marks, fashion and internet laws. Dr Eleonora Rosati is a Full Professor of Intellectual Property (IP) Law, Director of the Institute for Intellectual Property and Market Law (IFIM), and Co-Director of the LLM in European IP Law at Stockholm University. She is also Of Counsel at Bird & Bird and is the author of several articles and books on IP issues.

This article was published in the January 2022 issue of Alicante News.

 

 


 
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